Calcutta HC: Unexplained Increase in Seized Drug Weight Raises Doubt Over NDPS Investigation

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 23.09.2026

Calcutta HC: Unexplained Increase in Seized Drug Weight Raises Doubt Over NDPS Investigation

The Calcutta High Court, Circuit Bench at Port Blair, has granted bail to David Johnson in a case involving the alleged recovery of 54.01 grams of methamphetamine, after finding substantial and arguable questions concerning the change in weight of the seized substance, chain of custody, compliance with Section 42(2) of the NDPS Act and the manner in which the safeguard under Section 50 was communicated.

Justice Prasenjit Biswas held that, when these circumstances were considered cumulatively at the bail stage, the petitioner had established reasonable grounds sufficient to satisfy the first limb of the stringent twin conditions under Section 37 of the NDPS Act. The Court also found no material indicating that he was likely to commit a similar offence while on bail.

Bail Sought in 54.01-Gram Methamphetamine Case

• David Johnson approached the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking bail in Special NDPS Case No. 05 of 2026, arising from FIR No. 03 of 2026 registered by Police Station Anti-Narcotics.
• The case was registered under Section 22(c) of the NDPS Act, 1985.
• The petitioner argued that despite the statutory embargo under Section 37, the material available on record gave rise to reasonable grounds for believing that he may not be guilty of the alleged offence and that he was not likely to commit an offence while on bail.

Seized Methamphetamine Allegedly Increased From 54.01g to 54.11g

• One of the most significant issues before the High Court concerned an apparent discrepancy in the weight of the alleged contraband.
• According to the prosecution, 54.01 grams of methamphetamine had been seized from David Johnson. However, when the substance was subsequently weighed during sampling before the Magistrate, its total weight was recorded as 54.11 grams.
• The defence questioned how the seized substance could have increased by 0.10 gram between seizure and subsequent sampling, particularly when the identity, quantity and integrity of the contraband were central to an NDPS prosecution.
• The High Court found this discrepancy relevant. It observed that although the numerical difference might appear small, it could not be ignored altogether in an NDPS prosecution where the identity, quantity and integrity of the seized substance assume fundamental importance.
• More importantly, the Court noted that no satisfactory explanation had been placed before it as to how the weight increased between seizure and sampling.

Samples Not Sent Directly From Magistrate to Forensic Laboratory

• The second major issue concerned the chain of custody.
• The petitioner relied upon Rules 13 and 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022.
• Rule 13, as noted by the Court, contemplates that samples after certification by the Magistrate should be sent directly to the jurisdictional laboratory for chemical analysis without delay, while Rule 14 deals with expeditious testing and submission of the chemical analysis report.
• However, the materials before the High Court prima facie indicated that after inventory and sampling proceedings before the Magistrate, the samples were not transmitted directly to the jurisdictional forensic laboratory.
• Instead, they were first retained in the police malkhana and were thereafter forwarded to the CFSL.

Chain of Custody Intended to Prevent Alteration, Substitution or Contamination: HC

• The High Court stressed the purpose behind the prescribed procedure.
• It observed that the requirement governing transmission of samples is intended to maintain their integrity and minimise the possibility of alteration, substitution, contamination or uncertainty regarding the identity of the material ultimately examined by the forensic laboratory.
• The Court held that the relevant question was not simply whether the seized substance eventually reached the CFSL. It was also necessary to consider whether the prescribed chain of custody and safeguards governing its movement had been duly maintained.
• The manner in which the material had been retained and transmitted, when coupled with the unexplained weight discrepancy, raised an arguable issue concerning the integrity of the seized substance and the sample subjected to chemical examination.

Section 42(2) Compliance Also Questioned

• The petitioner additionally alleged non-compliance with Section 42(2) of the NDPS Act, particularly in relation to the alleged secret information upon which the investigating agency had acted.
• The High Court found prima facie substance in this argument.
• Justice Biswas observed that the safeguards under Section 42 cannot be treated as empty formalities, especially considering the stringent penal consequences under the NDPS Act.
• Where the prosecution acts upon prior secret information, the statutory requirement concerning the recording and communication of that information assumes significance. On the material then before the Court, strict compliance had not been satisfactorily demonstrated so as to completely dispel the doubt raised by the petitioner.

Section 50 Notice Also Came Under Scrutiny

• The State argued that Section 50 of the NDPS Act was not applicable to the search in question. Nevertheless, according to the State, a Section 50 notice had been served upon David Johnson as a matter of abundant precaution, and the petitioner had acknowledged it by signing the notice.
• The High Court nevertheless examined the notice because the State itself relied upon it as evidence of compliance.
• The Court observed that where a personal search is undertaken, the statutory safeguard under Section 50 assumes importance and the right contemplated by the provision must be communicated clearly and unambiguously.
• Significantly, the notice placed before the High Court did not appear to contain the name or sufficient particulars of the Gazetted Officer before whom the petitioner was allegedly offered the option of being searched.
• Prima facie, this raised a substantial question as to whether the petitioner had actually been made aware of the specific statutory safeguard available to him.

Supreme Court’s Parmanand Judgment Relied Upon

• The petitioner relied upon the Supreme Court judgment in State of Rajasthan v. Parmanand and Another, (2014) 5 SCC 345.
• The High Court noted the Supreme Court’s emphasis that the right under Section 50 of the NDPS Act is not an empty formality, and its communication must be clear, individual and unambiguous.
• The High Court also referred to Parmanand while examining the Section 50 notice in David Johnson’s case and reiterated the importance of the statutory safeguard.

Earlier Calcutta HC NDPS Bail Orders Also Cited

Apart from Parmanand, the petitioner relied upon orders passed by Coordinate Benches of the Calcutta High Court in:

• Alok Kumar Mandal — CRM (NDPS) 8 of 2025
• Shri Sandeep Bera — CRM (NDPS) 9 of 2025
• Shri Raju Golder — CRM (NDPS) 5 of 2025

These authorities were cited in support of the petitioner’s challenge to the procedural compliance in the NDPS investigation.

State: Procedural Objections Should Be Tested at Trial

• The State opposed bail and argued that the alleged discrepancies were matters that should properly be considered during trial after prosecution witnesses had been examined and subjected to cross-examination.
• It maintained that the seizure memo recorded recovery of the contraband from the petitioner and that this fact could not be disregarded merely because of the discrepancies highlighted by the defence.
• According to the State, the investigating agency had substantially followed the NDPS procedure, and the objections did not provide sufficient grounds for satisfying Section 37.

Section 37 Does Not Require Mini-Trial at Bail Stage

• The High Court clarified the standard applicable while considering bail under Section 37.
• The Court stated that it was not required to conduct a meticulous appreciation of evidence or record a finding of acquittal. At the same time, Section 37 requires reasonable satisfaction, based on the presently available material, regarding whether there are reasonable grounds for believing that the accused is not guilty and whether he is unlikely to commit an offence while on bail.
• The Court explained that “reasonable grounds” requires something more substantial than a mere prima facie consideration, although it does not amount to a final adjudication of the prosecution case.

Cumulative Procedural Defects Sufficient to Overcome Section 37 Embargo

After examining the material, the High Court identified four circumstances which, when considered cumulatively, raised substantial and arguable questions:

1. The unexplained increase in weight from 54.01 grams to 54.11 grams;
2. The manner in which the samples were retained and subsequently transmitted to the forensic laboratory;
3. The prima facie deficiency in compliance with Section 42(2); and
4. The apparent infirmity in the notice purportedly issued under Section 50.
5. According to the Court, these issues raised substantial questions concerning both the legality of the search and seizure and the integrity of the chain of custody.
6. The Court consequently found reasonable grounds for the purposes of the first condition under Section 37.
7. As regards the second condition, no material had been placed before the Court from which it could reasonably conclude that David Johnson, if released, was likely to commit a similar offence. The second limb of Section 37 could therefore also be satisfied by imposing appropriate conditions.

Calcutta High Court Grants Bail to David Johnson

• The High Court ultimately held that David Johnson had, at the present stage, overcome the rigours of Section 37 of the NDPS Act and was entitled to bail.
• He was directed to be released on furnishing a bail bond of ₹20,000 with two sureties of the same amount, one of whom must be a local surety, to the satisfaction of the Chief Judicial Magistrate, Port Blair.
• The Court imposed several conditions, including that Johnson must attend the concerned police station every alternate day, cooperate with the investigation, appear before the Trial Court on every hearing date unless exempted, and not leave the Islands without prior permission of the Trial Court.
• He was also prohibited from influencing witnesses, tampering with evidence or obstructing the trial.

Bail Order Does Not Amount to Acquittal

• Importantly, the High Court expressly clarified that its observations were confined solely to consideration of the bail application and should not be construed as any final opinion on the merits of the prosecution case.
• Thus, the Court’s prima facie observations concerning Sections 42 and 50, the weight discrepancy and chain of custody do not constitute a final determination that the investigation was illegal or that the petitioner is innocent. Those issues remain open for determination at trial.

Key Takeaway

The ruling demonstrates the importance of maintaining strict procedural safeguards in NDPS investigations, particularly where the stringent bail restrictions under Section 37 apply.

In David Johnson’s case, the Calcutta High Court found that the unexplained increase in the weight of the alleged methamphetamine, intervening malkhana custody before transmission to CFSL, prima facie deficiency under Section 42(2), and apparent infirmity in the Section 50 notice, cumulatively created substantial and arguable questions sufficient at the bail stage to overcome the first limb of Section 37.

With no material suggesting that the petitioner was likely to commit a similar offence while on bail, the Court found the second condition capable of being satisfied as well and granted conditional bail.

Connected Matter

Supreme Court: Accused Must Be Clearly and Individually Informed of Section 50 Right Before Personal Search

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Source: Calcutta High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi