Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

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Date: 15.09.2026

Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

The Delhi High Court has held that an unexplained delay in sending a seized narcotic sample for forensic examination can prove fatal to the prosecution where the evidence fails to establish that the sample remained in proper and safe custody during the intervening period.

In Rishi Dev @ Onkar Singh v. State (Delhi Administration), CRL.A. No. 757 of 2000, the High Court set aside the appellant’s conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and acquitted him after finding serious deficiencies in the prosecution’s handling and preservation of the seized sample. The judgment was delivered by Justice S. Muralidhar on 1 May 2008.

The Court held that where there is doubt whether the sample ultimately tested by the forensic laboratory was the very sample recovered from the accused, the benefit of that doubt must necessarily go to the accused.

Trial Court Had Sentenced Accused to 10 Years’ Rigorous Imprisonment

• The appeal arose from a judgment dated 25 November 2000 passed by the Additional Sessions Judge, Delhi, convicting Rishi Dev in FIR No. 290/90 for allegedly possessing 300 grams of smack.
• The trial court had sentenced him to 10 years’ rigorous imprisonment and imposed a fine of ₹1 lakh, with a further six months’ rigorous imprisonment in default of payment.
• According to the prosecution, police personnel were checking passers-by near Tejab Mill, Bhola Nath Nagar, Shahdara, when the appellant allegedly attempted to move away and subsequently ran on being asked to stop.
• After he was apprehended, the police claimed to have recovered a packet containing brown-coloured powder from his clothing. The substance was allegedly weighed at the spot and found to be 300 grams, from which a 50-gram sample was separated for forensic testing. The laboratory report subsequently stated that the sample tested positive for smack.

Accused Challenged Chain of Custody and Delay in Forensic Testing

• Before the Delhi High Court, the appellant raised several objections to the prosecution case.
• These included alleged non-compliance with Section 50 of the NDPS Act, absence of independent public witnesses, questions regarding the weighing of the contraband, handling of seals, the presence of the FIR number on documents allegedly prepared before registration of the FIR, and significant delay in sending the sample for forensic analysis.
• A particularly serious objection concerned the delay between seizure and forensic examination.
• The sample had been collected in December 1999, but the first attempt to send it to the forensic laboratory was made only on 1 March 2000. The appellant argued that there was no satisfactory explanation for what happened to the sample during this lengthy intervening period.

Delhi HC Notes NCB’s 72-Hour Requirement

• The High Court referred to Parminder Singh v. State of Haryana, in which the Punjab and Haryana High Court had considered the Narcotics Control Bureau instructions requiring sealed sample parcels to be deposited with the Chemical Examiner within 72 hours.
• Justice Muralidhar described the requirement as salutary because tampering with a sample recovered from an accused can have fatal consequences for the prosecution case.
• The Court stressed the need for strict compliance with safeguards concerning the preservation and prompt forwarding of samples.
• The Court also referred to Matloob v. State (Delhi Administration) and the Delhi High Court Rules requiring articles intended for chemical examination to be forwarded without the least possible delay.

Evidence Raised Serious Doubts About What Happened to Sample

• After examining the prosecution witnesses, the High Court found considerable uncertainty regarding the handling of the seized material.
• The Court observed that for more than two months no attempt was made to send the sample for chemical examination. The first attempt occurred on 1 March 2000 when the sample was taken to Chandigarh.
• It was subsequently returned and redeposited in the malkhana on 3 March. Another entry indicated that the sample was eventually sent to the FSL at Malviya Nagar on 15 March 2000.
• More importantly, the evidence indicated that the investigating officer had put the FIR number on the parcels and recovery memo at the police station, but no entry was made regarding removal of the case property from the malkhana for that purpose.
• These circumstances assumed particular importance because the sample remained within the control of police authorities for a considerable period before forensic testing.

Delay Alone Is Not Always Fatal

• The Delhi High Court clarified an important legal distinction: mere delay in sending a narcotic sample for testing is not automatically fatal in every NDPS prosecution.
• Referring to the Supreme Court decision in Valsala v. State of Kerala, the Court explained that a delayed sample can still be relied upon if the prosecution satisfactorily proves that the seized material remained in proper custody and proper form throughout the intervening period.
• What is critical is the integrity of the chain linking the seized substance with the sample ultimately examined by the forensic laboratory.
• The Court also referred to State of Gujarat v. Ismail U Haji Patel, where the Supreme Court emphasised that the decisive question is not simply delay but whether the prosecution establishes that the seized articles remained in proper custody and that the samples examined by the chemical analyst actually related to the seized articles.

Prosecution Failed to Establish Safe Custody

• Applying these principles, the High Court found that the prosecution evidence merely disclosed dates on which the sample entered or left the malkhana.
• It did not satisfactorily explain the nearly three-month delay or establish what happened to the sample during the intervening period.
• The Court therefore concluded that it was not satisfied that the sample remained in proper and safe custody or that the material eventually sent for forensic testing was necessarily the same sample recovered from the appellant.

Trial Court’s ‘Practical Approach’ Rejected

• The trial court had sought to explain the forensic delay by referring generally to the heavy workload of laboratories and the possibility that laboratory officials might refuse to accept samples because of overcrowding.
• The Delhi High Court expressly disagreed with that approach.
• It held that the case record should contain written entries demonstrating that an attempt was made to send the sample for testing within the prescribed period. Strict compliance was important because a sample retained in a police malkhana under seals belonging to police officers remained under police control, giving rise to the possibility of tampering and resealing.
• The Court further held that where the prosecution seeks to explain a delay on the ground that the forensic laboratory could not accept the sample, the record must demonstrate a genuine attempt to dispatch it promptly and its return for reasons beyond the prosecution’s control.

Such a deficiency in the documentary record cannot subsequently be cured merely through oral evidence.

Doubt Over Sample Integrity Must Benefit Accused

• The High Court emphasised that the reliability of a forensic report ultimately depends upon proof that the sample examined was actually the sample recovered from the accused.
• Where safe custody itself becomes doubtful, the evidentiary value of the laboratory result is correspondingly undermined.

The Court held:

“If there is doubt as to the safe custody of the sample that is recovered from the accused, then the benefit of such doubt, must obviously enure to the accused.”

Three-Month Delay Held Fatal; Accused Acquitted

• On the facts of the case, the Delhi High Court found that the prosecution had “failed miserably” to satisfy the legal requirements concerning preservation and safe custody of the sample.
• The nearly three-month delay was held fatal because the prosecution failed to establish that the seized sample had been properly preserved throughout that period and that the sample eventually tested was the same material originally seized.
• Since the appeal succeeded on this ground alone, the High Court found it unnecessary to examine the appellant’s remaining objections.
• Accordingly, the Court set aside the conviction dated 25 November 2000 and sentence dated 27 November 2000, acquitted Rishi Dev of the offence under Section 21 of the NDPS Act and directed that he be released forthwith unless required in another case.

Significance of the Judgment

The judgment is an important authority on the chain of custody and forensic integrity of seized narcotic samples in NDPS prosecutions.

It does not establish that every delay beyond 72 hours automatically invalidates an NDPS prosecution. Rather, its central principle is that where there is substantial delay, the prosecution must be able to demonstrate through reliable evidence and contemporaneous records that the seized sample was properly sealed, preserved and safely kept and that the sample ultimately tested was the same sample recovered from the accused.

In prosecutions carrying severe penal consequences, the forensic chain cannot rest upon assumptions. If an unexplained gap creates reasonable doubt about the identity or integrity of the sample, that doubt may go to the root of the prosecution case.

Connected Matter

Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

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Source: Delhi High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi