- 1 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.26737 OF 2024 (GM-RES) BETWEEN: SRI. SRINIVAS DALAVOI, AGED ABOUT 51 YEARS, S/O ADIKESAVALU, DALAVOI, R/O NO.7/21, 1ST CROSS, 9TH MAIN, R.M.V. EXTENSION, SADASHIVANAGR, BENGALURU – 560 080 …PETITIONER (BY SRI. PRABHULINGA NAVADAGI, SENIOR COUNSEL FOR SRI. RANGANATH R., ADVOCATE) AND: 1. UNION OF INDIA MINISTRY OF HOME AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI DELHI – 110 001 REP. BY ITS SECRETARY 2. SUPERINTENDENT OF POLICE NCB, NARCOTICS CONTROL BUREAU, ZONAL UNIT, BENGALURU REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001 …RESPONDENTS (BY SRI. RAJASHEKAR S., ADVOCATE FOR R1 & R2) Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND CONSEQUENTLY QUASH THE ENTIRE CHARGE SHEET IN SPL.C.C.NO.491/2023 ARISING OUT OF NCB CR.NO. 48/1/12/2022/BZU FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 22(A), 27, 28 AND 29 OF NDPS ACT PENDING ON THE FILE OF XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS), BENGALURU PRODUCED HEREWITH AND MARKED AS ANNEXURE-B AND IN SO FAR AS PETITIONER CONCERNED AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner – accused No.1 seeks quashing of the impugned proceedings in Spl.C.C.No.491/2023 pending before the Trial Court against the petitioner – accused No.1 and Sri. Girish V. Male – accused No.2 for alleged offences punishable under Sections 22(a), 27, 28 and 29 of the NDPS Act, 1985 and for other reliefs. 2. A perusal of the material on record will indicate that on 23.05.2022, the respondents are alleged to have conducted search and seizure proceedings during the course of which they seized the subject contraband which weighed about 1.08 grams from the petitioner – accused No.1 and accused No.2 whose statements - 3 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 were recorded and they were arrested and thereafter enlarged on bail. After investigation, the respondents filed the impugned charge sheet on 16.02.2023 which is currently pending in the impugned Spl.C.C.No.491/2023 before the Trial Court and which is assailed in the present petition. 3. Heard learned Senior Counsel for the petitioner and learned counsel for the respondents and perused the material on record. 4. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned Senior Counsel for the petitioner submits that apart from the fact that the impugned complaint and charge sheet material do not disclose the commission of the alleged offences by the petitioner, the impugned search and seizure proceedings were conducted in violation of Section 50 of the NDPS Act thereby rendering the entire proceedings unsustainable in law. It is also submitted that the procedure prescribed under Section 52A of the NDPS Act was also not followed and the impugned proceedings deserve to be quashed on this ground also. In support of his submissions, he placed reliance upon the judgment of the Apex - 4 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 Court in the case of Union of India Vs. Mohanlal and another – (2016) 3 SCC 379 and the judgment of the Co-ordinate Bench of this Court in the case of Hanumantha and another Vs. State of Karnataka – Crl.P.No.11994/2023 dated 10.09.2024. 5. Per contra, learned counsel for the respondents would refute the submissions made on behalf of the petitioner and submit that in the light of the judgment of the Apex Court in the case of Narcotics Control Bureau Vs. Kashif – 2024 SCC Online SC 3848, there is no merit in the petition and the same is liable to be dismissed. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. The undisputed material on record clearly indicates that the search and seizure were allegedly conducted on 23.05.2022; in this context, the seizure panchanama / mahazar clearly indicates that the said seizure was not conducted in the presence of either a nearest Gazetted Officer or the nearest Magistrate as can be seen from the seizure panchanama / mahazar, which reads as under: - 5 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 Panchanama / Mahazar Date: 23.05.2022 Time: 22.45 hrs Place: Near McDonald’s Sadahalli Gate, New Airport road, Bengaluru. Witness: 1. Sh. Rafeeq Pasha S/o Ameer Jan r/o Door No. 4, 3rd street, Kartigenahalli Near Water Tank, Yelahanka – 560 063. 2. Sh. Chadive Chandra Shekar Reddy S/o C Venkat Reddy No. 62.5th cross, Kattigenahalli, Near Water Tank, Yelahanika-560063 On 23.05.2022, an information was received from reliable source that “ One short middle aged person by name Girish, would be currying cocaine and will be coming in his blue colour TVS XL, two- wheeler bearing registration number KA-04-EC-6586, to hand over the cocaine to his boss namely Srinivas, near to McDonald's at Sadahalli gate area, Bengaluru at around 10:15pm today i.e,. on 23.05 2022. If surveillance s maintained near the said place, the two persons can be intercepted, while cocaine, is handed over between them and cocaine can be seized" The said information was submitted in typewriting as per section 42 of the NDPS Act, to the Superintend NCB, Bangalore 1 proforma who in turn constituted team and directed the undersigned to take action as per low. A copy of the information was also submitted to the Superintendent, NCB, Bangalore “ NCB BANGALORE SEAL NO. 03” was also issued in this regard. For the purpose of search and seizure proceedings the NCB team approached the above said persons from the general public nearby and informed them that NCB has a secret information regarding drug trafficking and rquested them to become independent witness, for which they agreed. Then the secret information was shared with both the independent witnesses and were given a notice in this regard upon which they acknowledged by putting their signatures on the notices. On the basis of this information and directions received from the Superintendent, a team of NCB Officers quipped with DD Kits, laptop, printers, sealing/stitching material, weighing machine and other necessary equipment required for search and seizure, proceeded at around 2100 hrs to the said location i.e., near McDonalds, Sadahalli Gate, New Airport road, Bengaluru along with independent witnesses and reached at around 2125 hrs along with independent witnesses. Then the NCB team discreetly mounted surveillance in the said location along with the independent witnesses. - 6 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 It was observed, that one middle aged person of short stature wearing a black jacket was sitting on blue colour TVS XL two-wheeler bearing registration number KA04-BC-6586, which was parked near the shops at service road, next to McDonalds, Sadahalli gate area. His appearance was matching the description as received in the secrete information. The NCB team mounted surveillance behind the suspect along with independent witnesses At around 22:30hrs, the said suspect started moving towards nearby isolated area and one person came to the said area and the short person handed over some packet into the hands of the other person Immediately, the NCB team surrounded both of them. The NCB team introduced ourselves to the both the persons by showing our Departmental ID cards and informed them about the secret information received and the purpose of interception and also introduced the above two persons as independent witnesses. Upon asking their introduction, the said persons introduced themselves as, Srinivas Dalavoi, 49 years s/o Adikesavalu Dalavoi, r/o No. 7/21, 1st cross. 9th main, RMV Extension, Sadashivanagar, Bengaluru 560 080. and the short person introduce himself as Girish V, 37 years old s/o Venkatesh V r/o 80, 4th main, 4th cross, Vivekananda block, Falar: Gutshaili, Bengaluru-560003. Then the NCB team offered personal search to both Srinivas and Girish, for which they declined politely. Then both Srinivas Dalvaoi and Girish V were enquired, if they were carrying cocaine with them, for which they were hesitant to answer and appeared nervous. Upon asking again, whether they are carrying any contraband with them, Srinivas Dalvoi replied saying that his servant Girish V just handed over him a packet of cocaine. Upon being the NCB team, Srinivas Dalvoi handed over the packet of cocaine to the NCB team. Then the NCB team opened the said packet. It was a paper packet, wraped with thick tissue paper. On opening the packet, it was found to contain white coloured power. A small pinch of the suspected white coloured power was taken and tested with field drug detection kit and the test gave positive result for Cocaine, which is a banned narcotic drug under the NDPS Act. On reason to believe that the suspected white coloured powder is cocaine, the said substance was seized as per the provision of the NDPS Act, 1985. The said white coloured powder believed to be cocaine was put in a transparent polythene zip lock pouch and weighed. The net weight of the seized cocaine came out to be 1.08 grmas. This transparent polythen ouch was zip locked and kept in the envelope, pasted and marked as P1. The packing material used to wrap the contraband substance was put in another transparent polythen pouch, zip locked and kep in an envelope, pasted and marked as P2. The description of the content of the envelope was also mentioned on the envelops. Both P1 and P2 were sealed with NCB BANGALORE SEAL NO.03. - 7 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 The Blue colour TVS XL two wheeler bearing registration number KA-04 EC-6586 used for transportation of cocaine by Girish V was also seized as per the provisions of the NDPS Act. The key of the said Blue colour TVS XL two wheeler bearing registration number KA- 04-EC-6585 was taken into custody. Since, it was dark in the night and public place, due to the inconvenience in the night and for the security purpose, it was decided to continue the panchanama proceedings of the above-mentioned search and seizure at NCB Bengaluru office. Hence, the independent witnesses, Seinivas Dalvaoi and Girish were requested to accompany the NCB team office, for which they agreed and accompanies the NCB team along with the seized property, independent witness, Srinivas Dalvoi, and Girish V reached NCB office at around 11.45 p.m hrs, for further documentation procedure Facsimile of the seal uses is as below: The entire search and seizure proceedings were conducted before the independent with ness, Srinivas Dalavoi and Girish V. The content of this Panchanama was also explained to independent witnesses, Srinivas Dalvoi and Girish V in Kannada. The independent witnesses, Srinivias Dalvoi, Girissh V along with the undersigned seizing officer put signatures on the seized property P1, P2 and documents. The above said proceedings were carried out without any damage to any property, person or religious sentiment. The proceedings ended peacefully at around 01:00 hrs on 24.05.2022.” 8. As is clear from the seizure panchanama, the search and seizure operation was not conducted in the presence of either a nearest Gazetted Officer or the nearest Magistrate; in this context, it would be apposite to refer to Section 50 of the NDPS Act, which reads as under: “50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without - 8 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” - 9 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 9. A bear perusal of the aforesaid provisions will indicate that the following procedure is prescribed enumerating the conditions under which search of persons shall be conducted: (a) The authorized officer should intimate the person(s) sought to be searched that search and seizure operation was going to be conducted and call upon / give an option to the said person(s) to make a requisition as to whether he intends to be taken for search to the nearest Gazetted Officer or nearest Magistrate for the said purpose; (b) If such person(s) opt and make a requisition to be searched in the presence of a Gazetted Officer or Magistrate, the authorized officer can detain such person(s) till they are brought to the Gazetted Officer or Magistrate; (c) The Gazetted Officer or Magistrate is entitled to either direct search to be made or discharge such person(s) if they see no reasonable ground for search; (d) Sub-section (5) of Section 50 contemplated that in the event the authorized officer has reasons to believe that it is not possible to take the person(s) proposed to be - 10 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 searched to the nearest Gazetted Officer or Magistrate without the possibility of the person(s) to be searched parting with possession of the subject contraband, the authorized officer may instead of taking them to the nearest Gazetted Officer or Magistrate proceed to search the persons in terms of Section 100 Cr.P.C. (e) In the event the authorized officer adopts the course of action provided under sub-section (5) of Section 50 of the NDPS Act, he thereafter should record reasons for such beliefs, which necessitated such search and send a copy thereof to his immediate official superior within 72 hours. 10. 10. In the instant case, a perusal of the material on record, in particular, the seizure mahazar / panchanama clearly establishes that the authorized officer did not provide any option / opportunity to the petitioner to state as to whether he requires to be taken to the nearest Gazetted Officer or Magistrate; neither was the search conducted in the presence of a Gazetted Officer or Magistrate as contemplated under Section 50 of the NDPS Act; so also, the procedure prescribed under sub-sections (5) and (6) of Section 50 - 11 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 of the NDPS Act was undisputedly not followed by the respondents in that even according to them, they did not have any reasons to believe that it was not possible to take the petitioner to the nearest Gazetted Officer or Magistrate nor were the same recorded and copy sent to the immediate official superior within 72 hours. Under these circumstances, in the light of the material on record, in particular, the seizure panchanama / mahazar referred to supra, I am of the considered opinion that there is complete and total violation and non-compliance of the provisions contained in Section 50 of the NDPS Act and consequently, the impugned proceedings deserve to be quashed. 11. In Hanumantha’s case supra, this Court held as under: “12. The learned Additional State Public Prosecutor makes a feeble attempt to justify the action on the ground that 15 grams of ganja was found when the body of the petitioners was searched and it was seized by drawing panchanama. If 15 grams of ganja was found in possession of these petitioners, nothing stopped the search party i.e., the 2nd respondent to mark the seizure in terms of Section 50 of the Act. Section 50 of the Act reads as follows: “50. Conditions under which search of persons shall be conducted.—(1) When any officer - 12 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub- section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” (Emphasis supplied) Section 50 of the Act deals with conduct of search of persons. When any officer duly authorized under Section 42 is about to search any person invoking his power under Section 41 or 42 or 43, he shall take such person without unnecessary delay to the nearest Gazetted Officer of any of the Department mentioned in Section 42 or to the nearest - 13 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 Magistrate. The purport and interpretation of Section 50 need not detain this court for long or delve deep into the matter. 13. A five Judge Bench of the Apex Court in VIJAYSINH CHANDUBHA JADEJA v. STATE OF GUJARAT-(2011) 1 SCC 609 has held as follows: “…. ….. …. 23. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172: 1999 SCC (Cri) 1080]. We are concerned with the following conclusions: (SCC pp. 208-10, para 57) “(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub- section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. *** (5) That whether or not the safeguards provided in Section 50 have been duly observed - 14 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.” (emphasis in original) 24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172: 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded - 15 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.” (Emphasis supplied) Following the aforesaid five Judge Bench judgment, the Apex Court in the case of ARIF KHAN v. STATE OF UTTARAKHAND - (2018) 18 SCC 380 has held as follows: “…. …. …. 16. The short question which arises for consideration in the appeal is whether the search/recovery made by the police officials from the appellant-accused of the alleged contraband (charas) can be held to be in accordance with the procedure prescribed under Section 50 of the NDPS Act. 17. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the police officials in letter and spirit while making the search and recovery of the contraband “charas” from the appellant-accused. 18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now - 16 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . 19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] has settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981].)” (Emphasis supplied) - 17 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 Reiterating the aforesaid view, the Apex Court in the case of RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH - 2023 SCC OnLine SC 1262, has held as follows: “….….…. 66. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:— (i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common - 18 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 communication of this right would be in violation of Section 50. (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate. (vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence. (viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.” (Emphasis supplied) The undisputed fact in the case at hand is that, the alleged 15 grams of ganja found in possession of the petitioners was not sent to FSL and the seizure is not recorded before a Gazetted Officer or the Magistrate as - 19 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 is necessary in law, which bears interpretation by the Apex Court in the afore-quoted judgments. XXXX 17. Sections 50 and 52A apart, as observed hereinabove, it is the deliberate act on the part of both the Investigating Officer and the Empowered Officer who have filed the charge sheet before the concerned Court to face the wrath of criminal justice system for maliciously prosecuting these petitioners. The maliciousness is apparent on the face of the record. The report of FSL in unequivocal terms indicates that blood samples did not contain any contraband substance or even its derivatives, but the Police filed the charge sheet recording that FSL report has confirmed presence of contraband substance. The Station House Officer/Empowered Officer or the Investigating Officer/2nd respondent-complainant and the officer who drew mahazar cannot be left off the hook for having played with the lives of these young students. Therefore, I deem it appropriate to direct the Disciplinary Authority of these petitioners to initiate departmental enquiry for having filed false charge sheet, against these petitioners. The departmental inquiry shall be conducted in complete consonance with the principles of natural justice by affording all reasonable opportunities to the complainant and the Station House Officer. 18. This Court is coming across plethora of cases where there is complete violation of Sections 50 and 52A - 20 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 of the Act, despite the law being very clear that it should be mandatorily followed. Therefore, the competent authority – DG & IG or the Secretary of the Home Department shall forthwith issue a circular notifying all the Empowered Officers who are empowered to conduct search and seize contraband substances to mandatorily follow Sections 50 and 52A of the Act and their interpretation by the Apex Court in RANJAN KUMAR CHADHA supra in letter and spirit, failing which, it should be indicated that those officers would become open to disciplinary proceedings against them. While it is important that menace of either narcotic drugs or psychotropic substances be curbed by dealing them with iron hand, it is equally important that curbing shall be in accordance with law, by following the procedure established by law, as any violation of procedure would lead to obliteration of proceedings that would be initiated against the accused who would get away of loopholes left in law by the Empowered Officers. In view of the preceding analysis, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C. and obliterate the criminal case against the petitioners, failing which, it would become an abuse of the process of the law and result in patent injustice. 12. In the instant case, as stated supra, in view of the violation of the requirements contained in Section 50 of the NDPS Act, the impugned proceedings deserve to be quashed. - 21 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 13. Section 52(A)of the NDPS Act reads as under: “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 4 [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 - 22 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 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.” - 23 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 14. The afore-stated provision and the underlying scheme of the NDPS Act stipulates that immediately / as soon as may be upon seizure, the subject contraband is to be disposed of by such authorized officer in terms of sub-section (1) of Section 52A; for this purpose, the subject contraband is to be forwarded to the officer in- charge of the nearest police station or to the officer empowered under Section 53 of the NDPS Act. Thereafter, the officer referred to in Sub-section (1) of Section 53 of the NDPS Act shall prepare an inventory of the subject contraband and make an application to the Magistrate in terms of Section 52A(2) of the NDPS Act; as soon as such an application is made, the Magistrate shall allow the application in terms of sub-section (3) of Section 52A. 15. In the instant case, the material on record discloses that the subject contraband which was undisputedly seized on 23/24.05.2022 was not forwarded to either the officer in-charge of the nearest police station or to an authorized officer under Section 53 of the NDPS Act; on the other hand, at 01:05 A.M. on 24.05.2022, the subject contraband was forwarded by Rathan.K., Intelligence Officer to the NCB Godown and received by the Superintendent / Godown in-charge, Kalika Prasad Tiwari; it follows - 24 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 therefrom that the procedure prescribed under Section 52A mandating the seized contraband to be forwarded either to the officer in-charge of the nearest police station or to the authorized officer under Section 53 of the NDPS Act had been violated and not complied with / fulfilled by the respondents. 16. 16. Section 52A(2) mandates that an inventory is to be prepared of the subject contraband by the authorized officer referred to in Section 52A(1), who shall thereafter make an application before the Magistrate for the purpose of either certifying the correcting of the inventory so prepared or taking photographs of the contraband and certifying the photographs as true or allowing for drawing of representative samples of such drugs and certifying the correctness of any list of samples so drawn by sending the same to the Forensic lab for such certification. 17. In the instant case, the alleged inventory relied upon by the respondents as part and parcel of the charge sheet does not bear any date and the alleged inventory is said to have been conducted by one C. Shanmugam, Intelligence Officer, who is neither the officer who forwarded the subject contraband or received the subject contraband; as stated earlier, Section 52A(1) - 25 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 and (2) mandates that immediately / soon after seizure, the authorized officer should forward the subject contraband and conduct / prepare inventory and thereafter make an application before the learned Magistrate; since, the aforesaid C. Shanmugam was neither the authorized officer, who seized, forwarded or received the subject contraband, the said person was clearly not entitled to make an application before the learned Magistrate and the respondents have violated these provisions also thereby vitiating the impugned proceedings. 18. A perusal of the material on record will indicate that immediately upon seizure, the aforesaid Rathan K., who is alleged to have seized the subject contraband files a remand application without any inventory seeking remand of the petitioner and accused No.2; interestingly, in the very same remand application dated 24.05.2022 he states that samples may be taken and sent to the Forensic lab for chemical analysis in terms of Section 52A of the NDPS Act and the said application was made before the Sessions Court, which is impermissible in law; however, no order was passed on the said request for chemical analysis. Subsequently, the other officer C. Shanmugam referred to supra - 26 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 once again makes an application dated 21.06.2022 again before the Sessions Court reiterating the request for drawing samples for the purpose of forensic analysis under Section 52A; it is needless to state that the said application ought to have been made before the Magistrate and not before the Sessions Court and accordingly, the Sessions Court directs the respondents to make an application before the Magistrate pursuant to which the respondents filed the application on 07.07.2022; this long gap of 50 days from the date of seizure on 23/24.05.2022 to 07.07.2022 is also an indicator of the fact that there is non-compliance of the provisions contained in Section 52A of the NDPS Act and the impugned proceedings deserve to be quashed on this ground also. 19. In Hanumantha’s case supra, while dealing with Section 52A of the NDPS Act, this Court held as under: “14. After the search what should be done is mandated under Section 52A of the Act. Section 52A of the Act reads as follows: “52-A. 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 - 27 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 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. - 28 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) 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.” (Emphasis supplied) This section mandates certain procedural seizure of contraband substance. The procedural mandate stipulated bears consideration at the hands of the Apex Court in the case of YUSUF v. STATE - 2023 SCC OnLine SC 1328, wherein the Apex Court holds as follows: “…. …. …. 8. We have heard learned Senior counsel for the appellant. The main plank of his argument is that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A (2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. 9. Learned counsel for the respondent on behalf of the State submitted that the search and seizure was based upon the prior information received by the Intelligence Officer of NCB who has been examined as PW1. The accused persons were disclosed the identity of the officers and after obtaining their consent in writing, the search was carried out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed. The NCB - 29 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 seal No. 12 was affixed to it and the correct seal number was mentioned in the Mahazar and all other documents except in the godown receipt whereby inadvertently seal No. 11 was mentioned. The Officers involved in the search, seizure and arrest operation had duly submitted their report as referred to under Section 57 of the NDPS Act. 10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. 11. For the sake of convenience, relevant sub- sections of Section 52A of the NDPS Act are reproduced herein below: “52A. Disposal of seized narcotic drugs and psychotropic substances.- (1) — (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 - 30 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 [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 or 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 subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Criminal Procedure Code, 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.” 12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and - 31 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 to certify the correctness of the list of samples so drawn. 13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. 14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. 15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly - 32 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.” (Emphasis supplied) The Apex Court was considering the importance of Section 52A which deals with disposal of narcotic drugs and psychotropic substances. It deals with the manner of seizing, preparing of inventory of the seized material and forwarding of the seized material and getting the inventory certified by the Magistrate concerned. It is further observed by the Apex Court that the inventory or the photographs or the seized substance in connection with the samples shall be recognized as primary evidence in connection with the offence under the Act. 15. In the case at hand, as observed, the learned Additional State Public Prosecutor projects a bleak contention of 15 grams of ganja being seized from the body of the petitioners. Where is the sample is a mystery. What happened to 15 grams of ganja is nowhere indicated. After the seizure, it is neither reported nor an inventory is drawn nor the sample is sent to FSL. 15 grams of ganja is not that of a high quantity for it not to be sent to FSL. Therefore, the presence of 15 grams of ganja as drawn in the panchanama is a canard and shrouded with improbability and to be disbelieved. It is, therefore a clear case where there is blatant violation of Sections 50 and 52A of the Act, which are mandatory - 33 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 to be followed, if there is an allegation of the offence punishable under the Act. The submission of the learned Additional State Public Prosecutor that it was a case of Section 20 of the Act is again unsustainable, as the provisions of law i.e., Section 50 and 52A of the Act are given a go-by while drawing these petitioners into the web of the crime. It is not the allegation, it cannot become the allegation. Thus, all the submissions of the learned Additional State Public Prosecutor are repelled. 16. There is yet another glaring illegality in the case at hand. The 2nd respondent is the complainant. The Police have filed the charge sheet. A perusal at the charge sheet would depict about 10 witnesses. It is shocking that the complainant is not listed as a witness. If the complainant who has allegedly seized 15 grams of ganja or found the petitioners consuming ganja, he should have been prosecution witness No.1. He is not even a witness who is examined by the Investigating Officer for a trial to be conducted and shown as charge sheet witness. What kind of investigation and the charge sheet that is filed in the case at hand is highly ununderstandable. There are illegalities whole hog that have pervaded in the proceedings. The petitioners at the relevant point in time were students. Due to the act of three officers, one the complainant, two the officer in-charge of the police station and three, the officer who conducted mahazar, the petitioners are suffering even today. The matter was moved, on an application filed by the 2nd petitioner that, he is losing his employment opportunities overseas, due - 34 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 to the sword of a narcotics case hanging on his head. The result of these officers indulging in blatant illegality is that, the career of the petitioners is put to jeopardy.” 20. While petitioner placed reliance upon the aforesaid judgment of this Court, which followed the judgment of the Apex Court in Mohanlal’s case supra, the respondents placed reliance upon the judgment of the Apex Court in Kashif’s case supra; both the earlier judgments of the Apex Court in Mohanlal’s case and Kashif’s case have been considered by the recent judgment of the Apex Court in the case of Bharat Aambale Vs. State of Chhattisgarh – 2025 SC Online SC 110 wherein it was held as under: “48. We are conscious of the fact that this Court in Mangilal (supra) held that in a given case, the onus would be on the prosecution to satisfy the court as regards the compliance with the mandate of Section 52A of the NDPS Act. The relevant observations read as under:— “8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the - 35 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. […]” (Emphasis supplied) 49. However, a close reading of the aforesaid decision reveals that this onus on the prosecution will only encumber once such an issue of non-compliance arises for consideration. Although, we are in complete agreement with the aforesaid observations inasmuch as it would be for the prosecution to establish and prove compliance of Section 52A of the NDPS Act, yet at the same time, we are of the considered opinion, that mere assertion by the accused that there has been non- compliance of the said provision may not be sufficient. The initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses. Such burden on the accused to establish contravention of Section 52A of the NDPS Act will only be on the mere preponderance of probabilities, whereas once the foundational facts are established that raises an issue as regards the non- compliance of Section 52A of the NDPS Act, the onus - 36 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 will entirely be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt. 50. We summarize our final conclusion as under:— (I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the - 37 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty - 38 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non- compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance - 39 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.” 21. If the principles enunciated in the aforesaid judgment are applied to the facts of the instant case, it is clear that the respondent – prosecution have failed to establish that there is compliance, much less substantial compliance of the provisions contained in Section 52A of the NDPS Act and the samples drawn subsequent to 07.07.2022 after more than 50 days from the date of seizure that was done on 24.05.2022 leads to adverse inference being drawn against the respondents, who have failed to establish by cogent evidence that there was either substantial compliance with the mandate of Section 52A of the NDPS Act nor that such non-compliance does not affect its case against the petitioner and there was standard of proof available beyond reasonable doubt. Under these circumstances, I am of the view that the impugned proceedings qua the petitioner deserves to be quashed. 22. A perusal of the complaint, charge sheet material, etc., would also indicate that even at the time of seizure at about - 40 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 10.30 P.M. on 23.05.2022, the subject contraband was not found in the custody of petitioner – accused No.1; in fact, even according to the respondents, they conducted the seizure and search operation at that time during the course of which they found accused No.2 handing over the subject contraband to accused No.1 and that the accused No.2 was sitting on a two wheeler motor cycle; immediately thereafter the respondents apprehended both accused persons and interrogated them, arrested them and thereafter, conducted investigation and filed the impugned charge sheet; it is therefore clear that except alleged recovery of the subject contraband when it was allegedly being handed over by accused No.2 to accused No.1, immediately prior to seizure, there is no other material placed on record by the respondents to establish the role and involvement of petitioner – accused No.1 in the alleged offences; so also, even the charge sheet material produced after investigation also does not establish the guilt of the petitioner and consequently on this ground also, the impugned proceedings deserve to be quashed. 23. In view of the aforesaid facts and circumstances, I am of the view that continuation of the impugned proceeding qua - 41 - HC-KAR NC: 2025:KHC:22165 WP No. 26737 of 2024 petitioner – accused No.1 would amount to abuse of process of law warranting interference in the present petition. 24. In the result, I pass the following: ORDER (i) The petition is hereby allowed. (ii) The impugned proceedings in Spl.C.C.No.491/2023 pending before the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, against the petitioner – accused No.1 for the offences punishable under Sections 22(a), 27, 28 and 29 of the NDPS Act, 1985 is hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS / SV List No.: 2 Sl No.: 63