Affidavit-Based Chief Examination Impermissible in Sessions Trials; Magistrate-Supervised Sampling Mandatory under Section 52A NDPS Act: Kerala High Court Acquittal in ASKAF v. Sub Inspector of Police, Sulthan Bathery
Introduction
In ASKAF v. Sub Inspector of Police, Sulthan Bathery (Crl. Appeal No. 447 of 2014; 2025 KER 66384), the Kerala High Court (Johnson John, J.) set aside a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and acquitted the appellant. The decision, delivered on 8 September 2025, turns on two foundational procedural safeguards:
- First, a Sessions Court cannot accept an affidavit as the examination-in-chief of a material prosecution witness; the evidence must be recorded in the presence of the accused or his pleader, with the court controlling the form of the questions (Sections 273, 276, 278 CrPC).
- Second, representative samples of seized narcotic/psychotropic substances must be drawn under the supervision of, and certified by, a Magistrate pursuant to Section 52A of the NDPS Act, as clarified in Union of India v. Mohanlal (2016) and followed in later Supreme Court authorities.
The appellant, tried as the sole accused in S.C. No. 89 of 2012 before the Special Court (NDPS Act Cases), Vatakara, had been convicted under Sections 22(b) and 22(c) NDPS Act for alleged conscious possession of Buprenorphine and Diazepam injection ampoules. On appeal, the High Court found the trial vitiated by (i) use of chief affidavits of material witnesses (PWs 1 and 4) contrary to Section 276 CrPC and (ii) non-compliance with Section 52A NDPS Act in the sampling process, and granted the benefit of reasonable doubt.
Summary of the Judgment
The High Court allowed the appeal and acquitted the appellant, setting aside the conviction and sentence imposed by the Special Court. The Court held:
- The trial court impermissibly accepted the chief affidavits of material prosecution witnesses (PWs 1 and 4) as evidence. This violated Section 276 CrPC, which mandates that in Sessions trials, evidence must be recorded by the presiding judge (or under his supervision) in open court, in the presence of the accused (Section 273), and read over to the witness (Section 278), enabling the defence to object to leading or irrelevant questions. The Court relied on Supreme Court decisions in Ekene Godwin (2024 SCC OnLine 337) and Ashok (2024 KHC 6668).
- The prosecution’s sampling procedure under the NDPS Act was defective. Exhibit P1 (seizure mahazar) lacked particulars of the sampling method, and it was undisputed that PW1 (the detecting officer) drew samples on the spot. Following Union of India v. Mohanlal (2016 KHC 6069) and Simranjit Singh v. State of Punjab (AIR 2023 SC (Supp) 1010), the Court held that representative samples must be drawn under a Magistrate’s supervision per Section 52A(2) and (3). Sampling at the time of seizure by the detecting officer is contrary to the statutory scheme and vitiates the prosecution.
Concluding that the prosecution case was not free from suspicion, the Court extended the benefit of reasonable doubt, acquitted the appellant of the charges under Sections 22(b) and 22(c), and directed his release unless required in any other case.
Analysis
Precedents Cited and Their Influence
The judgment synthesizes and applies four important Supreme Court rulings:
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Ekene Godwin and Another v. State of Tamil Nadu [2024 SCC OnLine 337]:
The Supreme Court emphasized that when the examination-in-chief of a material prosecution witness is recorded, the presence of the accused’s advocate is necessary; the defence has a right to object to leading or irrelevant questions. The Kerala High Court quotes this principle to show that accepting affidavits as chief examination precludes contemporaneous objections and thus causes prejudice. The prejudice here is structural, not merely procedural.
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Ashok v. State of Uttar Pradesh [2024 KHC 6668]:
Reinforces that recording examination-in-chief in the absence of the accused’s counsel deprives the defence of a “very valuable right” to object to improper questions, thereby vitiating the trial. The High Court uses this to conclude that the Sessions Court’s acceptance of chief affidavits of PWs 1 and 4 fatally undermined the fairness of the proceedings.
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Union of India v. Mohanlal and another [2016 KHC 6069]:
A landmark ruling on Section 52A NDPS Act. The Supreme Court clarified that upon seizure, the contraband must be forwarded to the officer-in-charge of the nearest police station or an officer empowered under Section 53; that officer must approach the Magistrate for:
- Certification of inventory;
- Certification of photographs; and
- Drawing representative samples in the Magistrate’s presence and certification of the sample list.
The Court underscored that sampling “at the time of seizure” is not envisaged by the statute and that samples drawn and certified under Section 52A(2)-(3) constitute primary evidence for trial. It also issued systemic directions (para 20) on seizure, sampling, storage, and disposal. The Kerala High Court applies this ratio to hold that spot sampling by the detecting officer, as occurred here, conflicts with the statute and is fatal.
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Simranjit Singh v. State of Punjab [AIR 2023 SC (Supp) 1010]:
Confirms Mohanlal and reiterates that failure to draw samples under Magistrate supervision under Section 52A(2) vitiates the prosecution. The High Court follows this to grant the benefit of reasonable doubt.
Legal Reasoning
1) Impermissibility of Chief Affidavits in Sessions Trials
The Code of Criminal Procedure prescribes the manner of taking evidence in Sessions trials:
- Section 273 CrPC: Evidence must be taken in the presence of the accused.
- Section 276 CrPC: In Sessions trials, the presiding Judge must record the evidence, ordinarily as a narrative, in open court, or cause it to be recorded under his supervision.
- Section 278 CrPC: Recorded evidence must be read over to the witness in the presence of the accused.
Together, these provisions ensure that the defence can object to leading or irrelevant questions during the examination-in-chief, and that the judge controls the mode of recording evidence. By accepting the chief examination of PWs 1 and 4 via affidavits, the trial court bypassed these safeguards. Given that PWs 1 and 4 were material witnesses (including the detecting officer), their evidence could not be treated as “formal” within the limited affidavit exception contemplated under Section 296 CrPC. The High Court, relying on the Supreme Court’s 2024 authorities, held that such a course causes irremediable prejudice and vitiates the trial.
2) Mandatory Magistrate-Supervised Sampling under Section 52A NDPS Act
The High Court found that Exhibit P1 (seizure mahazar) listed sample items (as items 1, 3, and 5) but did not describe the sampling procedure. It was undisputed that PW1 (the detecting officer) drew samples at the spot. Under Mohanlal, the statutory scheme requires:
- Transmission of the seized articles to the officer-in-charge or empowered officer (Section 53 NDPS Act);
- Application to the Magistrate under Section 52A(2) for inventory and sampling in the Magistrate’s presence;
- Certification by the Magistrate under Section 52A(3), with such certified samples constituting primary evidence for trial.
The Supreme Court in Mohanlal also noted the tension between Standing Orders and the statute, resolving it in favour of the statutory mandate. Subsequent application in Simranjit Singh confirmed that non-compliance with Section 52A(2)-(3) is not a mere irregularity but goes to the root of the prosecution case. Here, the defect was compounded by the absence of procedural particulars in the mahazar and the lack of Magistrate supervision, undermining the evidentiary integrity of the samples.
3) Cumulative Effect and Standard of Proof
NDPS offences carry stringent penalties, and courts consistently insist on strict adherence to procedural safeguards. In this case, both the trial-mode defect (improper acceptance of affidavit chief examination) and the sampling defect (contrary to Section 52A) were substantive infringements. The High Court therefore concluded that the prosecution case was not free from suspicion and extended the benefit of reasonable doubt. The acquittal aligns with the principle that in criminal trials—especially under the NDPS Act where consequences are severe—procedural fairness is integral to the reliability of the prosecution’s evidence.
Impact and Implications
A. On Trial Practice in Sessions Courts
- No affidavit-based chief examination for material witnesses: Sessions judges must record examination-in-chief in open court, in the presence of the accused or his pleader, allowing contemporaneous objections. Resort to Section 296 CrPC should be confined to truly formal witnesses and must always preserve the right of cross-examination.
- Prejudice per se: Following Ekene Godwin and Ashok, recording chief examination without the defence’s presence or via affidavit will likely be treated as inherently prejudicial for material witnesses.
B. On NDPS Enforcement and Prosecutions
- Sampling protocol: Investigating officers must, immediately after seizure, forward the contraband to the officer-in-charge or empowered officer and approach the Magistrate for supervised sampling and certification under Section 52A(2)-(3).
- Documentation: Seizure mahazars should meticulously record the steps taken, including forwarding to the appropriate officer, filing of the Section 52A application, the Magistrate’s proceedings, and certification of inventory and samples.
- Systemic readiness: The Mohanlal directions (para 20) on storage facilities, double locks, designated officers, and prompt disposal remain binding. Departments must ensure infrastructure, SOPs, and training are updated and audited.
- Case audits: Prosecuting agencies should review pending and recent NDPS cases for Section 52A compliance and rectify procedural gaps wherever possible; otherwise, acquittals may follow.
C. For Defence and the Courts
- Defence vigilance: Defence counsel should object to affidavit-based chief examination of material witnesses and insist on strict compliance with Sections 273, 276, and 278 CrPC.
- Judicial gatekeeping: Trial courts should decline affidavit-based chief examinations for material witnesses and require the prosecution to establish Section 52A compliance on record, given its centrality to the integrity of the primary evidence.
Complex Concepts Simplified
- Examination-in-chief: The first stage of a witness’s testimony, led by the party calling the witness. In Sessions trials, it must be recorded in open court, in the presence of the accused or his pleader. The defence can object to leading or irrelevant questions at this stage.
- Leading question: A question that suggests the answer. Generally impermissible during chief examination, unless permitted by the court in limited circumstances. The defence’s right to object is crucial to prevent unfair shaping of testimony.
- Mahazar: A seizure memo or spot-panchnama. It records the seizure of the contraband, circumstances, witnesses present, and any essential steps taken (e.g., sealing, sampling). Its completeness and internal consistency are often decisive in NDPS prosecutions.
- Section 52A NDPS Act: Provides for preparation of inventory, photographing, and drawing of representative samples of seized articles under Magistrate supervision, with certification. Such certified samples constitute primary evidence. Sampling by the detecting officer at the spot, without Magistrate oversight, is contrary to the statutory scheme.
- Sections 22(b) and 22(c) NDPS Act: Punishment provisions for contraventions involving psychotropic substances. Clause (b) relates to quantities above “small” but below “commercial”; clause (c) applies to “commercial” quantity. The penal consequences escalate sharply with quantity.
- Benefit of reasonable doubt: The standard requires that if the prosecution case leaves a reasonable doubt about guilt, the accused must be acquitted. In NDPS matters—given the severe penalties—courts expect scrupulous adherence to procedural safeguards.
- Standing Orders vs. Statute: Administrative Standing Orders cannot override the statute. Where there is conflict, the statutory mandate (here, Section 52A) prevails, as clarified in Mohanlal.
Conclusion
ASKAF v. Sub Inspector of Police, Sulthan Bathery is a strong reaffirmation of two cardinal principles of criminal adjudication under the NDPS regime:
- Fair trial safeguards in Sessions trials are non-negotiable: Chief examination of material witnesses by affidavit is impermissible under Sections 273, 276, and 278 CrPC, as it deprives the defence of the right to object to improper questions and undermines judicial control over the evidentiary process.
- Section 52A NDPS Act compliance is mandatory: Representative sampling must be conducted under a Magistrate’s supervision and certification. Spot sampling by the detecting officer contravenes the statutory scheme and can vitiate the prosecution, given that certified samples constitute primary evidence.
The Kerala High Court’s decision not only vindicates the accused’s fair trial rights but also signals to law enforcement and trial courts that procedural shortcuts—for however well-intentioned—cannot substitute statutory compliance in NDPS prosecutions. Going forward, this judgment will serve as a practical guidepost: record evidence correctly in Sessions trials, and treat Section 52A compliance as a threshold requirement. The message is clear: procedural integrity is substantive justice, particularly in an area of law where liberty is measured in decades.
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