The Hon’ble Division Bench of Justice Sanjay Dhar and Justice Puneet Gupta while deciding an appeal against a judgment passed by the Principal Sessions (Special Judge), Jammu(hereinafter referred to as the trial court) whereby the appellant was convicted of offences under Sections 8/20 of the NDPS Act and by virtue of a separate order was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of rupees one lac, enunciated several principles for prosecution of offences under the NDPS Act as well as determining the guilt of the accused. 
The Appellant among other grounds for setting aside the Order of Conviction had contended that the samples of the recovered contraband were not drawn in
presence of the Magistrate and even the contraband as well as the samples
were not produced during the trial of the case. Therefore, in view of the
provisions contained in Section 52A of the NDPS Act, there was no
primary evidence before the trial court with regard to seizure and sampling
of the contraband substance and in its absence no conviction could have
been recorded against the appellant.

While taking note of Sec 52A of the NDPS Act, the admissibility of inventory, photographs and the list of samples certified by the Magistrate as primary evidence is a substitute to production of physical evidence in the shape of seized contraband and sealed samples, which is there to ensure immediate disposal of the seized narcotic drugs and psychotropic substances. However, in a case where seized contraband and sealed samples are produced before the trial court in a physical form, the provisions contained in 52A of the NDPS Act would have no applicability. 

The court held that physical production of the contraband and sealed samples
before the court will have to be taken into consideration, even if, the
contraband and the samples have not been seized and sealed in accordance
with the provisions contained in 52A(2) of the NDPS Act.

Furthermore, referring to Section 68 of the NDPS Act, the Court held that it is clear that an officer vested with powers under the NDPS Act cannot be compelled to disclose his source of information with regard to commission of any offence and that there is a statutory bar to the disclosure of source of information as regards commission of offence under the NDPS Act. Moreover, differentiating the judgment of Delhi High Court in the case of “Karan Singh vs State [(NCT of Delhi), 2006 (130) DLT 114]”, the Court ruled, ”In the present case, respondent-NCB has not placed reliance upon the statement of the person who had given information to PW-1 Kaushal Kumar as such, there was no question of disclosing his identity or examining him in court during the trial of, there was no question of disclosing his identity or examining him in court during the trial of the case.”

Moreover, the Court held that where no doubt has been raised about the site of recovery by the defence during cross examination of the witness, “the non-preparation of site map relating to the site of recovery in the instant case would not cause any dent to the case of the prosecution.” 

Further, relying upon the judgment of Supreme Court in Karamjeet Singh v State [(NCT of Delhi), 2003, 5 SCC 291] as well as in Davinder Pal Singh v State [(NCT of Delhi) (2002) 5 SCC 235] the Court held, “the mere fact that independent witnesses were not associated with the proceedings relating to seizure of the contraband and its sealing would not render the case of prosecution nugatory, particularly when it has been shown from the evidence on record that PW Kaushal Kumar did try to associate civilians in the entire process, but due to their reluctance, he was unable to do so.”

The Court, while relying on “Mukesh Singh v State (Narcotic Branch of Delhi), [(2020)10 SCC 120]” as well as , Sections 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57 and 57-A of the NDPS Act, observed, “merely because the informant happens to be the investigator of the case does not vitiate the investigation and the trial and entitle the accused to acquittal. Unless and until it is shown that investigator has acted with bias or has conducted investigation in an unfair manner, presumption would arise in favour of due discharge of official functions by the investigator.”