Bulk Contraband Not Produced or Lawfully Destroyed Under Section 52A: Supreme Court Upholds NDPS Acquittal

On 11.5.2004 an Inspector acting on information intercepted three accused and found 7.2 kg of opium with the respondent; two 30-gram samples were drawn (para 2). The Special Judge, Neemuch convicted him on 21.4.2008 and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1,00,000 (para 2). On 23.2.2010 the Madhya Pradesh High Court (Indore Bench) acquitted him, holding that the bulk was not disposed of by the Executive Magistrate and that his Section 67 statement, recorded in custody after arrest, was not voluntary (opening paragraph, para 3). The Union of India relied on the Section 52A proceedings of 14.10.2004 (para 5).

The Magistrate's proceedings of 14.10.2004 showed that only samples were drawn; the remaining seized stuff and samples were handed back to the investigating officer, and the trial court had ordered the property preserved because a co-accused was absconding (paras 8-9). Nothing on record showed what happened to the bulk, and "The absence of proper explanation from the prosecution significantly undermines its case" (para 9). Failure to produce the bulk creates a doubt about the genuineness of the samples (para 10). A claim that it was destroyed could not be accepted: "Law requires that such an authority must flow from an order passed by the Magistrate", and the only course was an order under Section 52A, citing Noor Aga (para 10). No application was made, no order passed and no notice given to the accused, so the High Court rightly disbelieved the prosecution (para 11). The two independent witnesses turned hostile, and the officer admitted the Section 67 statement was recorded in custody without noting the time, so it could not be treated as voluntary (para 12).