The Supreme Court on Wednesday (September 16) set aside the convictions of two individuals after twenty years in an NDPS Act case for the alleged recovery and possession of charas in a commercial quantity, after finding that the prosecution had failed to establish the link in the chain of custody of the seized contraband. The Court noted an unexplained gap of five days between the date on which the seized material was forwarded for FSL testing and the date on which it was actually received by the FSL.

The Court also found an absence of identifying marks/signatures on the sample packets, no corresponding maalkhana exit entry, non-examination of the carrier Constable, and total non-compliance with Section 52-A of the NDPS Act as significant factors rendering the conviction bad in law.

“The prosecution has offered no explanation whatsoever as to where and in whose custody the samples remained during the period with connected matter between 1st December, 2004 and 6th December, 2004. This grave discrepancy and the gap of five (5) days, completely breaches the link in the chain of custody, which was required to be established if the prosecution was desirous of placing reliance on the FSL report.”, observed a bench of Justice Sandeep Mehta and Justice Manmohan, while setting aside the Madhya Pradesh High Court's judgment which had upheld the trial court's decision convicting the Appellants despite there an unexplained gap in the custody of the samples.

Reference was made to 2011's Supreme Court judgment of State of Rajasthan v. Tara Singh, where also an acquittal was affirmed as the prosecution had failed to account for the custody of the seized samples between their alleged dispatch and their receipt at the laboratory.

Deficiency in sealing, safe custody and lack of identification marks on sample packet

The Court also noted deficiency in the prosecution's case regarding the sealing, safe custody and bearing of any identification marks on the sample packet of the seized sample. According to the Court, “the prosecution has to prove, by proper link evidence, that the samples extracted by seizure officer from the recovered contraband were properly sealed and remained in safe and secure condition from the time of seizure till their receipt at the FSL.”

“…there is no indication in the memos that the sample packets were secured under the signatures of the Inspector/seizure officer (PW-7), the panch witnesses and the accused-appellants, or that any chits bearing particular identification marks were affixed to the sample packets so as to enable their subsequent identification and correlation with the contraband seized from the respective accused.”, the Court observed, emphasizing that “…for the FSL report to be admitted in evidence, the prosecution would have to establish, by credible oral and documentary evidence, the complete chain of custody essential to establish the integrity and sanctity of the samples.”

Though total compliance with Section 52-A is not mandatory, a total non-compliance becomes significant

Relying on Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033, the judgment authored by Justice Mehta said that though non-compliance with Section 52-A would not always prove fatal to the prosecution's when the recovery was otherwise proved despite occurrence of a minor procedural delay in compliance with the said provision, a total non-compliance with Section 52-A “would definitely be a relevant factor to be taken into account while assessing the mandatory requirement of proving that the samples were kept in a safe and secure condition, i.e., the link evidence from the time of seizure till the time the samples came to be deposited in the FSL.”

The Court, in this case, found that the seizure officer made no effort to “undertake the procedure provided under Section 52- A of the NDPS Act for drawing representative samples in the presence of a Magistrate and thus, there is total non-compliance with the said provision.”

“It is well settled that mere delayed compliance or non-compliance of the procedure envisaged under Section 52A does not, by itself, entitle the accused to claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the search and seizure of the contraband was conducted in accordance with the mandatory provisions of the NDPS Act. Where non-compliance of Section 52A of the NDPS Act is alleged, the prosecution must prove either substantial compliance with the mandate of Section 52A of the NDPS Act or satisfy the Court that such non-compliance has not affected its case against the accused.”, the Court observed in a recent case of Mehboob Shah v. State of Madhya Pradesh 2026 LiveLaw (SC) 705.

FSL report became insignificant

Applying the aforesaid law, the Court held that the FSL report became insignificant as the link evidence has been totally breached because of failure to ensure the proper sealing, safe custody, and non-bearance of the proper identification marks on the FSL report.

“Applying the aforesaid principles laid down by this Court to the facts of the present case, it is clear that the link evidence has been totally breached leading total collapse of the sanctity and integrity of the samples. Resultantly, the FSL Report (Exhibit P46) loses its significance and must be discarded from consideration. Once the FSL report is excluded from consideration, there is no other legally admissible evidence available to establish that the substance allegedly recovered from the accused-appellants was charas within the meaning of Section 2(iii)(a) of the NDPS Act so as to attract the penal consequences under Section 20 thereof. In the absence of such foundational evidence, the prosecution has failed to establish an essential ingredient of the offence and, consequently, the conviction of the accused appellants cannot be sustained.”, the Court held.

As a result, the appeals were allowed, thereby overturning the Appellants' conviction.

Cause Title: ABDUL RAJIK VERSUS STATE OF M.P., GOVIND VERSUS STATE OF M.P.

Citation : 2026 LiveLaw (SC) 949

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Appearance:

For Appellant(s) : Mr. T. Mahipal, AOR Mr. Saurabh Ajay Gupta, AOR Mr. Ritik Gupta, Adv. Mr. Ayush Haritash, Adv.

For Respondent(s) : Ms. Mrinal Gopal Elker, AOR