Non-compliance with mandatory provisions under the NDPS Act, is fatal to the prosecution case

Jammu and Kashmir High Court Upholds Acquittal in NDPS Case Court dismisses State's appeal, citing non-compliance with mandatory procedural safeguards under the NDPS Act

In a significant judgment, the Jammu and Kashmir High Court has upheld the acquittal of Bashir Ahmed, who was previously charged under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The division bench comprising Mrs. Sindhu Sharma and Mr. Shahzad Azeem, JJ., dismissed the appeal filed by the State, affirming the trial court's decision citing procedural lapses by the prosecution.

The case stemmed from an incident on August 1, 2009, when Bashir Ahmed, a police department follower, was accused of smuggling cannabis while traveling from Banihal towards Batote. The police intercepted him based on prior information, and a formal case was registered under the NDPS Act following the seizure of cannabis from his possession.

The trial court had acquitted Ahmed on January 29, 2013, due to the prosecution's failure to adhere to mandatory provisions of the NDPS Act, including Sections 42, 50, 52, 52A, 55, and 57. The High Court, in its judgment dated November 17, 2025, concurred with the trial court's observations that the prosecution did not document the prior information in writing or communicate it to superior officers as required by Section 42. Furthermore, the sampling procedures did not comply with Section 52A, as samples were not drawn in the presence of a Magistrate, rendering them inadmissible as primary evidence.

The judgment highlighted contradictions in the prosecution's case, including discrepancies in witness testimonies regarding the recovery and handling of the contraband. The court noted that these contradictions and procedural breaches significantly weakened the prosecution's case.

The State's appeal argued that the trial court erred in appreciating the evidence and extended undue benefit of the doubt to the accused. However, the High Court found no merit in these contentions and emphasized that non-compliance with procedural safeguards under the NDPS Act is fatal to the prosecution's case.

The court referred to a precedent set by the Supreme Court in the case of Yusuf @ Asif (2023), which underscored the importance of compliance with Sections 52A(2)(c) and other related provisions for the admissibility of evidence. The absence of certified inventory and samples drawn in the presence of a Magistrate meant that the seized contraband could not be considered valid primary evidence, leading to the vitiation of the trial.

In conclusion, the High Court found no perversity or illegality in the trial court's judgment and dismissed the State's appeal, upholding the acquittal of Bashir Ahmed.

Bottom Line:

Non-compliance with mandatory provisions under the NDPS Act, such as Sections 42, 50, and 52A, is fatal to the prosecution case, and failure to comply with these provisions can lead to acquittal.

Statutory provision(s): Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 42, 50, 52, 52A, 55, 57

State of J&K v. Bashir Ahmed, (Jammu And Kashmir)(DB) : Law Finder Doc Id # 2809614