Justice Sandeep Kumar directs Director General, Directorate of Revenue Intelligence to compensate the petitioner reasonably in a NDPS case

In Nurul Hasan Khan vs. Union of India through the Director General, Directorate of Revenue Intelligence (D.R.I) New Delhi & Ors. (2025), Justice Sandeep Kumar of Patna High Court delivered a 20-page long judgement dated October 17, 2025 concluded:''34. Considering the fact that the petitioner was deprived of his vehicle (crane) unlawfully which was his source of income and livelihood and the crane of the petitioner was sold behind his back without following the due process of law, this Court deems it appropriate and in the interest of justice that it is a fit case to compensate the petitioner reasonably.'' He allowed the criminal appeal. The other two respondents were:Assistant Director, Directorate of Revenue Intelligence, Regional Unit, Patna and Intelligence Officer, D.R.I., Regional Unit, Patna.

Justice Kumar directed the respondent authorities to pay an amount of Rs.3,00,000/- which has been valued by the respondent authorities with interest at the rate of 8% per annum from the date on which the vehicle has been seized. The payment must be made in favour of the petitioner within eight weeks from today. He concluded:''this Court directs the respondent authorities to pay a cost of Rs.1,00,000/- (Rupees One Lakh) in addition to the aforementioned amount, as indicated in the proceeding paragraph, to the petitioner within a period of eight weeks from today.''

The judgement observed:''35. This Court has noticed that the respondents on the one hand had found that the petitioner or his driver/helper were not involved in the crime and on the other hand they have moved an application for pre-trial disposal of the crane of the petitioner. Therefore, this Court finds that the action of the respondents in disposing the crane of the petitioner without any notice to him as wholly arbitrary. The respondents have further failed to inform the learned trial court that the actual owner of the crane, having not been arrayed as an accused, was not before it and the order of the disposal of the crane was passed to the prejudice of the petitioner.'' 

The criminal writ application was filed for a direction upon the respondent authorities to pay appropriate compensation to the petitioner for arbitrarily and illegally disposing/selling of the crane of the petitioner bearing registration No. BR2H 6948. According to the petitioner, the action of the respondent authorities in illegally disposing /selling of the said crane was in complete violation of the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 as well as the settled principle of law. 

It was the case of the petitioner that he was the owner of a crane bearing registration no. BR2H 6948, which was used for towing vehicles as his source of income. According to the petitioner, on June 6, 2019, the Chowkidar of Aurangabad (M) Police Station called the petitioner for towing a Bolero Pickup van which had met with an accident at Karhara More, G.T. road en route to Patna and upon his request, the petitioner provided his crane for towing of the said Bolero to Patna.

The senior counsel for the petitioner submitted that based upon a secret information, the Directorate of Revenue Intelligence intercepted the Bolero Pick-up van bearing registration No. BR-6GD/5751 near D.R.M. Office, Danapur Station, Saguna More Road, Patna, which was being towed by the crane belonging to the petitioner. In the crane, two persons were present namely, Md. Salamat Murtuza, who was the driver of the said crane and Md. Faiz, who was the khalasi (helper) of the said crane. Upon search of the Bolero pickup Van which was being towed by the petitioner's crane, the D.R.I. officials seized 47 crates of mangoes and 06 jute and 28 plastics sacks containing a total of 141 brown coloured packets containing substance believed to be ganja from the said Bolero Pick up van. He also submitted that thereafter the statements of said two persons namely, Salamat Murtuza and Md. Faiz were recorded under section 67 of the N.D.P.S. Act, wherein they had stated that they did not have any knowledge about the recovered ganja and the same was not recovered from their conscious possession and they were merely towing the Bolero pickup van on the direction of the owner of the said crane. On being called by the D.R.I officials, the petitioner appeared in the D.R.I office and his statement was also recorded under section 67 of the N.D.P.S. Act, in which he had stated that he did not have any knowledge about the said ganja recovered from the Bolero pick-up van which had met with an accident and he was told that mangoes were loaded on it.

It was submitted by the senior counsel for the petitioner that the crane of the petitioner was seized on June 7, 2019 and the statement of the petitioner was recorded on the same day and thereafter the prosecution report was submitted on June 8, 2019 wherein it was categorically stated that based on the evidence gathered during the proceedings and the statements of the petitioner, his driver and khalasi(heloper), it was found that neither the petitioner nor his driver or khalasi were involved in the illicit trade of ganja but on June 1, 2019, the same officer i.e. respondent no. 3, filed an application for pre-trial disposal of the said crane besides the Bolero Pick up without any intimation or notice to the petitioner and ultimately, by an order dated June 3, 2019 passed by the court of learned Special Judge, Patna in Special Case No. 59 of 2019, the respondent no.3 was granted permission for disposing the crane of the petitioner. Therefore, it is submitted that the crane of the petitioner was unlawfully auction sold by the respondents.

The petitioner's senior counsel submitted that since the petitioner or his driver and Khalasi (helper) were not made accused in the instant case by the D.R.I., it was incumbent upon the DRI to release the crane of petitioner seized by them since it was not liable to be confiscated. Thus, the respondents by seizing the crane, after coming to the conclusion that the petitioner was not involved in the present case, have committed a gross illegality. He also submitted b the respondents while disposing of the crane of the petitioner have grossly violated section 52A of the N.D.P.S. Act, which deals with disposal of narcotic drugs and psychotic substance. Therefore, it was the submission of the petitioner that the respondents in the garb of seized narcotics drugs and psychotic substance disposed of the crane of the petitioner by way of auction sold, which admittedly as per their own version was not involved in illicit trade of ganja. 

The senior counsel submitted that prior to disposing the crane of the petitioner, neither the respondents issued/served any notice to the petitioner nor gave any opportunity of being heard. Moreover, the DRI also did not inform the trial court that neither the petitioner nor his driver and khalasi were found to be involved in the present case and thus the DRI also mislead the trial court and obtained the order dated August 3, 2019 by suppressing the material fact, by which the pre-trial disposal of the crane of the petitioner was allowed. The respondents in their counter affidavit categorically admitted that the involvement of the petitioner in the illicit trade of ganja was not established but the respondents still went ahead and auction sold the crane of the petitioner. 

The senior counsel for the petitioner submitted that section 52A of the N.D.P.S. Act deals with disposal of seized narcotic drugs and psychotropic substance and in view of the aforesaid section, the action of respondent in disposing of the crane of the petitioner is absolutely illegal, unwarranted and against the provision of the Act. He also submitted that as per the inventory of the seized crane prepared, which is annexed as Annexure-4, the crane was found in good condition, still the respondents under-valued the crane for Rs. 3,00,000/- and sold it on a throw away price. The respondents have disposed of the crane of the petitioner and this fact came to the knowledge of the petitioner only after passing of the order dated December 2, 2021. Therefore, the action of respondents in auction selling of the crane of the petitioner was blatantly illegal, arbitrary and has caused great suffering to the petitioner as well as affected his livelihood as the operation of crane was his source of income and same has caused physical, mental agony and financial loss to the petitioner. Thus, it was submitted that the petitioner was liable to be fairly and adequately compensated by the respondents for illegally and arbitrarily auction selling his crane.

A counter affidavit was filed on behalf of the respondent - D.R.I. wherein the facts relating to the N.D.P.S. has been mentioned and thereafter, it was stated that based on the evidences gathered such as, CDRs. of the petitioner, his driver and khalasi were scientifically analyzed and on the basis of the analysis it was found that no connection could be established between the petitioner, his driver and khalasi and the actual owner of the seized contraband i.e. ganja. 

Justice Kumar's judgement quoted the relevant para no.9 of the counter affidavit, which reads:“9. That under the circumstances explained above, on the basis of evidences gathered during the whole proceedings and as per statement of the above said persons drawn under Section 67 of the NDPS Act, 1985, conscious involvement of the above said persons namely Salamat Murutza (driver of the disputed vehicle) and Md. Faiz (khalasi of the disputed vehicle) as well as Nurul Hasan Khan, owner of the said crane in the illicit trade of the Ganja could not be established. Hence, the driver of the crane, his cousin brother and the owner of the crane was not arrested. Hence, they were accordingly released without causing any loss or injury to them with their consent that as and when their presence will be required in course of the investigation of the case, they will accordingly cooperate in the investigation. Intimation for recovery of ganja was prepared and the same was duly intimated to the Court of Sessions Judge-cum-Special (N.D.P.S. Act) Patna on 10.06.2019.”

The counsel for the respondents submitted that after passing of the order dated August 3, 2019, the D.R.I. had forwarded the matter to the Customs Department to auction the seized goods and thereafter as per the procedure, the reserved price of the crane was fixed on August 13, 2019 by the Joint Pricing Committee. Thereafter, in terms of the provisions of the Disposal Manual, 2019 the aforesaid crane was e-auctioned in favour M/s. Kushwaha Enterprises being the highest bidder and accordingly, the sale was confirmed. Therefore, it is pointed out that the Customs Department did nothing but carry out the orders dated August 3, 2019 of the trial court as per the procedure of the Disposal Manual, 2019. It was also submission of the respondents that the petitioner had approached the trial court for the release of his crane after passing of the order dated August 3, 2019 for pre-trial disposal of the crane. Further, no procedural irregularity was pointed out in the e-auction process which was done as per by Disposal Manual, 2019. Moreover, the crane of the petitioner was towing the Bolero pickup van, in which narcotic substance i.e. ganja was recovered and as such, the crane was the conveyance, which was used to transport the narcotic substance which is liable to be confiscated under section 60(3) of the N.D.P.S. Act and a similar provision was there under section 115(2) of the Customs Act, 1962. 

It was also submitted that the petitioner was never denied that his crane was not transporting/towing the Bolero pickup van from which contraband ganja was recovered and the trial of the case is still gong on and the matter was sub-judice. The crane of the petitioner was auction sold under the order of pre-trial disposal and as such, after completion of the trial, the trial court may order for deposit of the sale amount or its confiscation, on completion of trial and as such, payment of the amount to the petitioner may not be made and if at all ordered, the same may be done after taking appropriate security awaiting the final decision of the trial court. It was submitted that order dated August 3, 2019 by which the pre-trial disposal of the crane of the petitioner was allowed was belatedly challenged by way of filing an interlocutory application before the High Court and the order dated February 2, 2021 by which the trial court had rejected the petition of the petitioner for release of his crane remains unchallenged till date and as such, the relief, as prayed for, was untenable.

The counsel for the respondents had relied on a decision of the Supreme Court in Union of India vs. Mohanlal and Anr. reported as (2016) 3 SCC 379. 

Justice Kumar recorded that pursuant to the order dated November 14, 2022 passed by a coordinate Bench of the Patna High Court, an affidavit was sworn and filed by the Joint Commissioner, Customs wherein the procedure adopted for auctioning the crane of the petitioner was brought on record.

Justice Kumar quoted Paragraph nos. 13 to 16 of the counte  affidavit filed by the Assistant Commissioner (Legal, Customs (P), Patna. It reads: “13. That Notification No.75/2003-Customs (N.T.) dated 12.09.2003 has been issued under Section 27A of the Customs Act, 1962 which stipulates the rate of interest payable by the Department to the applicant on any delayed refund beyond 3 months payable by the Department. 14. That it is further humbly stated that Notification No.33/2016-Customs (N.T.) dated 01.03.2016, which prescribes the applicable rate of interest payable by a person liable to pay any duty under the Customs Act, 1962, shall, in addition to such duty be liable to pay interest, if any, at the rate fixed on delayed payment which has been fixed vide the aforesaid Notification and is being respectfully submitted for the kind perusal and consideration of this Hon'ble Court. 15. That it is further humbly stated that the Hon'ble Bombay High Court in the matter of M/s Ajay Industrial Corporation Ltd. Vs. Deputy Commissioner of Customs (writ petition No. 13314 of 2024) vide Judgment dated 15.10.2024 were please to grant 6% interest. 16. That the Department undertakes to ensure that such lapses do not reoccur in future and necessary steps are being taken to streamline internal communication processes. Necessary Department action has been initiated against the officers concerned for grave lapses.”

Justice Kumar observed: ''24. In the present case, the D.R.I. had intercepted a Bolero vehicle was being towed by the crane of the petitioner and from the aforesaid Bolero vehicle ganja was recovered. Consequently, a criminal case was initiated under the N.D.P.S. Act wherein along with seized articles, the crane of the petitioner was also seized. After an investigation, the role of the petitioner and his driver/ helper was not found in the crime. Consequently, they were not arrayed as an accused." 

On August 1, 2019, the Special P.P. had moved an application before the trial court for disposal of the vehicles including the crane of the petitioner. Thereafter, the trial court passed the order dated August 3, 2019 in the Special Case No.59 of 2019. The order reads: “A petition dated 01.08.2019 filed on behalf of the prosecution has been moved today praying therein to pre-trial disposal of (1) Bolero Pick-up bearing Registration No. BR 06GD-5157 along with the Crane bearing Registration No.BR 2H-6948 on which crates of mangoes was found loaded. (2) 683.8500 Kg Ganja (3) 540 Kg Mangoes, seized in this case, on the basis of authorization of Directorate of Revenue Intelligence (DRI) to the Sp.LPP for obtaining pre-trial disposal order, in which certification of seized goods (Narcotic drugs) had already been done, from the Court's concerned. Heard Sri Krishna Kant Tiwari, the learned Spl.P.P. From perusal of the recved, it transpires that certification of the recovered Narcotic substance and other articles including the vehicles has already been done by Sri Sukul Ram, ACJM-13, Patna whose report, in this regard is already on record. Hence, is the light of submission as prayed for, prayer is allowed. It is therefore, ordered that the concerned authorities are permitted to dispose of the (1) Bolero Pick-up bearing Registration No. BR 06GD-5157 as well as Crane bearing Registration No. BR 2H-6948, (2) 683.8500 Kg Ganja (3) 541 Kg Mangoes, seized in this case, as per rule.”

Justice Kumar observed: ''26. Pertinently, the petitioner was not arrayed as an accused in the N.D.P.S. case. Being unaware of such an order for disposing of his crane, being passed, the petitioner moved before the trial court seeking release of his vehicle and at that time he came to known about disposal of his crane." 

The order dated December 2, 2021 passed in Special Case No.59 of 2019 reads: “Learned counsel for the petitioner Nurul Hasan submits that in this case a crane bearing registration no. BR 2H 6948 has been seized by DRI Regional Unit Patna on the ground that unclaimed ganja was recovered from accidental Bolero pickup bearing registration no. BR 06GB 5197 which was towed by the crane. It has also been submitted that the crane has no concerned with the alleged ganja and during investigation the petitioner was not found liable to be arrested and was accordingly released by the intelligence officer. In the light of these submissions, it has been prayed that the crane be allowed to be released. Learned Spl. P.P. opposes the prayer by submitting that the petition is not maintainable because this court vide its order dated 03.08.2019 has ordered for disposal of the said crane and Bolero Pickup and along with the seized ganja and all of these have already been disposed of. The said crane has been auctioned sold. Therefore, its release is not possible. On perusal of the second is clear that this court vide its order dated 03.08.2019 itself has allowed for disposal of the said crane. Once the crane has been disposed of it can not be a subject matter of release. As far as the question of realization of amount of sale by its lawful owner is concerned then the petitioner is at liberty to file proper petition at appropriate form. With this observation the petition is disposed off.”

The High Court's judgement dated October 17, 2025 reads: ''27. From the perusal of the afore-quoted orders, it is clear that the present petitioner, who is the owner of the crane in this case, had not been heard before his vehicle i.e. the seized crane in question, was disposed and was subsequently auction sold. The order dated 03.08.2019 wherein the application dated 01.08.2019 was considered only records the appearance of the learned Spl. P.P. therein and neither notice had been issued to the owner of the crane i.e. the present petitioner nor any opportunity has been afforded to him.''

Section 60 of the N.D.P.S. Act reads: “60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.- (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substances, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.”

Justice Kumar observed:''the Article 300A of the Constitution of India also protects the property of the petitioner and he cannot be deprived of his property save and except in accordance with law.'' His judgement recorded: ''31. In the counter affidavit filed by the D.R.I. it has categorically been stated that upon investigation it was found that the petitioner and his driver/khalasi (helper) were not involved in the illicit trade of ganja and therefore, none of them were arrayed as an accused. 32. Since the petitioner was not an accused in the N.D.P.S. case, it was the duty of the prosecuting agency to bring this fact to the notice of the trial court that the owner of the crane in question was not before it while the court was considering the application for pre-trial disposal of the crane of the petitioner and therefore, the order dated 03.08.2019 ought not to have been passed without hearing the petitioner who is the bona fide owner of the crane in question.''

Notably, Section 60(3) of the N.D.P.S provides for confiscation only when the vehicle in question was knowingly being used for illicit purposes. Section 60 provides that any conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent or any person in-charge of the conveyance and that all such persons had taken all reasonable precautions against such use. 

It is apparent from the provisions under Section 60 (3) that if the owner of the vehicle/conveyance proves that his vehicle was used in the commission of the offence without his knowledge or connivance and he has taken all reasonable precautions against such use, the conveyance cannot be confiscated despite it being used in the commission of the alleged offense under the NDPS Act.

Supreme Court grants bail to a NDPS convict

In Suraj Sai@ Rukhi @ Rukhi Sao vs. The State of Bihar (2025), Supreme Court's bench of Justices Sudhanshu Dhulia and K. Vinod Chandran passed an order dated March 5 2025 granting bail to the petitioner in a SLP (criminal). The order reads:"The petitioner has already undergone about 7 ½ years in jail and there is a question of law involved here relating to Section 52A of the NDPS Act. Considering the period of incarceration of the petitioner and the entire facts and circumstances of this case, we are of the opinion that a case of bail is made out for the petitioner and therefore, the prayer for bail is allowed. Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court." It listed the Special Leave Petition for hearing on April 7, 2025. The case arose from Muffasil thana, Aurangabad, Bihar in 2016. 

The petitioner is an accused in a case punishable Under Section 8-20(b)(ii)(C) of the NDPS Act and has been convicted for 14 years rigorous imprisonment by the trial court. The conviction and sentence of the petitioner was upheld by the Division Bench of Patna High Court vide impugned order dated August 2, 2023. The allegation against the petitioner is that 898 kgs of Ganja had been recovered from this possession. 

The Division Bench comprising of Justices Ashutosh Kumar and Vipul M. Pancholi had observed:"We have also gone through the reasoning recorded by the Trial Court while passing the impugned order of conviction and we are of the view that the Trial Court has not committed any error while passing the impugned order of conviction and, therefore, we are not inclined to interfere with the same in the present appeals filed by the appellants-accused. Accordingly, all these appeals are dismissed." The 26-page long High Court's judgement was authored by Justice Pancholi. Besides Suraj Sao, there are three more petitioner's in the related cases, namely, Kamakhya Giri, Upendra Giri and Ram Lakhan Tiwari. 

 

Supreme Court seeks fresh hearing by a new bench of Delhi High Court on interpretation of Section 52A in NDPS case

In Narcotics Control Bureau vs. Kashif (2024), Supreme Court's bench of Justices Bela M. Trivedi and Satish Chandra Sharma has requested the Chief Justice of Delhi High Court "to place the Bail application of the Respondent before the Bench other than the Bench which has passed the impugned order, for deciding it afresh." The judgement was delivered on December 20, 2024.

The Court was hearing the appeal which arose out of the order dated May 18, 2023 passed by Justice Jasmeet Singh of the High Court of Delhi in a bail application granting bail to the respondent. The bail application was allowed by the High Court solely on the ground of belated compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Justice Trivedi led bench felt that the High Court misinterpreted this provision, and without recording the findings as mandated in Section 37 of the NDPS Act. The Court felt that High Court's order involved seminal issue on the interpretation of Section 52A of the Act is likely to have wide repercussions. 

The Court noted that the provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.

Supreme Court's judgement observed that the High Court's order is based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. It concluded: "Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law. Since, we are remanding the matter for fresh consideration on merits, we are extending the period of bail granted to the respondent for four  weeks, with a request to the High Court to decide the application afresh as expeditiously as possible, and preferably within four weeks. In case the same is not disposed of within four weeks it shall be open for the High Court to pass appropriate orders with regard to extension/ non-extension of the said period."

Section 52A:“Disposal of seized narcotic drugs and psychotropic substances.—(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—(a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

The NDPS Act came into force on October 14, 1985, Section 52A was inserted by the Act 2 of 1989, which came into force with effect from May 29, 1989. For the purpose of proper interpretation of Section 52A, it would be beneficial to peep into its historical background, and the position with regard to the search, seizure, drawing of sample, etc. prevailing prior to the insertion of Section 52A. Prior to insertion of Section 52A in the Act, the Central Government in exercise of the powers under Section 4(3) of the NDPS Act vide notification dated March 17, 1986, had constituted the Narcotics Control Bureau (NCB) conferring upon it the powers and functions of Central Government for taking measures in respect of matters contained in Section 4(2) of the Act. It was noticed by the NCB that different Investigating Officers of various enforcement agencies were adopting different procedures in drawing samples from seized narcotic drugs and psychotropic substances, etc. Therefore, with a view to bring uniformity of approach in such matters and to provide for a secured system of handling of drug samples, the NCB had issued the Standing Instructions No. 1 of 88 vide the Notification dated 15.03.1988. The said Notification of the Standing Instructions no. 1 of 88 pertained to the procedure to be followed for drawing samples from the seized narcotic drugs and psychotropic substances, numbering of samples drawn, sealing, mode of packing, dispatch of samples to the concerned laboratory for test etc. The relevant clauses of the said Standing Instructions No. 1 of 88 pertaining to the place and time of drawal of sample, disposal of Remnant sample/duplicate sample and the drug, read as under:
“1.5. Place and time of drawal of sample: Samples from the Narcotic Drugs and Psychotropic Substances
seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the Panchanama drawn on the spot.
1.21. Custody of duplicate sample Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved and kept safely in the custody of the Investigating officer alongwith the case property. Normally duplicate sample may not be used but in case of loss of original sample in transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilized.
1.22. Disposal of Test Memo
As soon as the test result in original or duplicate or both test memos are received, the same will be filled in the Court, trying the case, alongwith, chargesheet/complaint by the Investigating officer. He will keep an attested copy of the same in his case file.
1.23. Disposal of Remnant sample/duplicate sample and the drug-At present, the remnant sample/duplicate sample and seized narcotic drugs and psychotropic substances can be disposed of after the proceedings of prosecution is over or by obtaining an order from such court under Section 110 of the Customs Act, 1962 and/or 451 of Cr.P.C. While obtaining the order of the court under the aforesaid section it is necessary that specific order in respect of the remnant sample/ duplicate sample is also obtained. After such order has been obtained, the drug or substance along with the samples including remnants shall be disposed of in the13 manner prescribed. Please acknowledge the receipt of the standing order."

Recognizing the importance of dispatch, transit, receipt, safe custody, storage, proper accounting and disposal destruction of the seized/confiscated drugs and the need for evolving a uniform procedure, the NCB issued the Standing Order No. 2 of 88 vide the Notification dated April 11, 1988. The NCB vide the said Standing Order formulated the procedure to be followed by all the Central and State drug law enforcement agencies for seizure, sampling, storage etc. It was mentioned in clause 3.1 thereof that “all drugs should be properly classified, carefully weighed and sampled on the spot of seizure.” The clause 3.2 thereof stated that “the procedures set out in Standing Order No.1 of 88 should be scrupulously followed”. The clause 5.2 directed the respective enforcement agencies to constitute a three-member Committee, making it responsible to advise the respective investigating officers on the steps to be initiated for expeditious disposal of the seized drugs.