NDPS | Absence Of Independent Witnesses, S. 52-A Lapses Not Fatal If Recovery & Conscious Possession Established : Supreme Court

Dismissing the appeal of a woman convicted for possessing 23.5 kg of ganja, the Supreme Court on Thursday (December 11) held that the absence of independent witnesses during the seizure is not fatal to the prosecution so long as police witnesses provide consistent and credible evidence of recovery. The Court further clarified that mere procedural lapses in sampling under Section 52-A of the NDPS Act do not vitiate the prosecution unless they compromise the integrity of the seized contraband.

A bench of Justice Sanjay Karol and Justice Vipul M Pancholi, heard the matter where the Appellant-convict sought acquittal on the alleged procedural defects carried out during the process of seizure and sampling as the police has seized the contraband on an information in absence of an independent witness, moreover the sampling of contraband was allegedly carried out at the spot without the presence of a magistrate, contrary to Section 52-A of the NDPS Act.

Upholding her conviction, the judgment authored by Justice Pancholi observed that the absence of independent witnesses is not fatal where police witnesses provide consistent and reliable testimony.

Further, citing Bharat Aambale v. State of Chhattisgarh, 2025 LiveLaw (SC) 84 case, the Court observed that “mere noncompliance or delayed compliance with Section 52-A is not fatal unless the irregularity creates discrepancies affecting the integrity of the seized substance or rendering the prosecution case doubtful. Equally, even where some procedural lapse is shown, if the remaining oral or documentary evidence inspires confidence regarding the seizure and conscious possession, the conviction may still be upheld.”

Since the samples were duly sealed, produced before the magistrate, sent to the FSL, and examined without any signs of tampering, and the forensic expert confirmed both intact seals and the presence of cannabinoids, the Court held that non-adherence to the exact procedure under Section 52-A of the NDPS Act does not, by itself, undermine the prosecution's case.

“In these circumstances, even assuming some deviation from the ideal procedure envisaged under Section 52-A, such irregularity does not go to the root of the matter nor does it create any reasonable doubt regarding the authenticity of the seized contraband or the identity of the samples analysed. The prosecution has demonstrated substantial compliance with the statutory requirements and the integrity of the material evidence stands fully preserved. Accordingly, the appellant's contention founded on non-compliance with Section 52-A is rejected.”, the court observed.

Accordingly, the appeal was dismissed.

Cause Title: JOTHI @ NAGAJOTHI VERSUS THE STATE

Citation : 2025 LiveLaw (SC) 1197

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Appearance:

For Appellant(s) : Mr. M.P. Srivignesh, Adv. Mr. Lakshman Raja. T, Adv. Mr. Sharavena Raghul Asr, Adv. Mr. Mithun Kumaar N, Adv. Mr. Gokul Athithya R P, Adv. Mr. Manu Srinath, AOR

For Respondent(s) : Mr. Sabarish Subramanian, AOR