2023 (6) TMI 364 - HC - Indian Laws

Bail Denied: Procedural Sampling Issues in NDPS Act to Be Addressed at Trial, Not Bail Stage.

The HC dismissed the bail application, emphasizing that procedural deficiencies in sampling under the NDPS Act should be examined during the trial, not at ... Seeking grant of regular bail - recovery of contraband item - Heroin - narcotic substance - proper sampling procedure or not - HELD THAT:- The procedure which comes into effect after arrest and seizure is contained in Section 52 and 57 of the NDPS Act. The Hon’ble Supreme Court, in STATE OF PUNJAB VERSUS BALBIR SINGH [1994 (3) TMI 173 - SUPREME COURT] has held The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. It is pertinent to note that Section 52A of the NDPS Act was added by 1989 Amending Act with effect from 29.05.1989 - It is pertinent to note that the language of the aforesaid provision signifies its applicability with regard to disposal of seized drugs, i.e., at a stage after recovery and seizure. The issue with regard to defect in sampling was for the first time dealt with by the Hon’ble Supreme Court, in Gaunter Edwin Kircher v. State of Goa, [1993 (3) TMI 370 - SUPREME COURT] was dealing with a case of conviction under Section 20(b)(ii) of the NDPS Act. The appellant in the said case was found in possession of 2 pieces of charas that weighed 7 and 5 gms respectively. Out of the 2 pieces, one piece of 5 gms was sent for chemical analysis, however, the piece weighing 7 gms was neither sent nor a sample thereof was taken and sent for chemical analysis. In this factual background, the Hon’ble Supreme Court held that since there was no chemical analysis for the other piece weighing 7 gms, either wholly or a part of it as a sample, the appellant cannot be convicted for the other cylindrical piece, weighing 7 gms. It was further noted that since the quantity for which test was conducted, was less than 5 gms, the same came within the meaning of small quantity for the purpose of Section 27 of the NDPS Act and in that case, conviction was modified from Section 20(b)(i) to Section 27 of the NDPS Act. The Hon’ble Supreme Court, in Balbir Singh observed that the provision of Section 52 of the NDPS Act is directory in nature. It was further held that non-compliance of the said provision, in itself, cannot render the actions of the investigating officers as null and void. It would have to be demonstrated that in the facts and circumstances of a particular case, whether such non-compliance caused prejudice to the accused and resulted in failure of justice. It was further held that if there is no proper explanation for non-compliance, then the same will have an effect on the case of the prosecution and the Courts will have to appreciate the evidence and material placed on record in the case in order to determine the issue. Whether non-compliance of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied , will have to be examined considering the nature of violation of such standing procedure and consequences thereof. This Court is of the opinion that the procedure adopted with respect to contraband in the present case is not defective in nature at this stage. The applicant will get ample opportunity to prove that the said recovery was defective and samples drawn were not the true representatives of the samples recovered, during the course of trial before learned Special Judge. It is pertinent to note that, the said standing orders cannot be exhaustive enough to cover all factual scenarios at the time of seizure of the contraband. Various factors like nature of contraband seized, the volume/quantity of the seizure, place of seizure, time of seizure, etc. will be relevant to determine any non- compliance thereof and effect of such noncompliance. Hon’ble Supreme Court in Balbir Singh observed that the Investigating Officer is bound by the procedural instructions and has to follow the same, and in case of non-compliance thereof, and if no proper explanation is forthcoming, then the same would have adverse impact on the prosecution’s case. It was further noted in the said judgment that the Courts would appreciate the evidence and merits of the case keeping these aspects in view. In the opinion of this Court, whether the samples drawn would be a true representative sample of the contraband recovered, can be answered by the chemical analyst, who analyses the sample and gives his/her opinion. Learned Special Judge during the course of the trial will have the advantage of the testimony of the chemical analyst as well as the production of contraband seized in the Court. It is pertinent to note that the case property is still there for any further analysis if so required. Therefore, it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed. Application dismissed. Issues Involved:1. Defective Sampling Procedure2. Compliance with Section 52A of NDPS Act3. Applicability of Standing Orders and Notifications4. Prejudice to the Accused5. Grounds for Bail under Section 37 of NDPS ActIssue 1: Defective Sampling ProcedureThe petitioner sought bail on the ground of defective sampling procedure adopted by the Investigating Officer. The counsel argued that the Investigating Officer mixed the contents of 10 packets recovered from the petitioner and drew samples from the mixture, contrary to law.Issue 2: Compliance with Section 52A of NDPS ActThe counsel for the petitioner submitted that the prosecution failed to produce all packets before the Magistrate for sampling as required under Section 52A of the NDPS Act, relying on Standing Orders 1/88 and 1/89 and a notification dated 23.12.2022.Issue 3: Applicability of Standing Orders and NotificationsThe Court noted that Standing Order 1/88 and 1/89 were issued under Section 52 of the NDPS Act, and a subsequent notification dated 23.12.2022 was issued under Section 76 read with Section 52A. However, the notification dated 23.12.2022 was not applicable as the contraband was seized on 27.06.2021.Issue 4: Prejudice to the AccusedThe Court observed that the issue of defective sampling and its compliance with standing orders is a matter of evidence to be appreciated at the time of trial. The accused must establish prejudice caused due to non-compliance with the sampling procedure.Issue 5: Grounds for Bail under Section 37 of NDPS ActThe Court referred to precedents where non-compliance with sampling procedures was considered at the trial stage and not at the bail stage. The Court held that the procedural deficiency in sampling could be considered only after evidence is led on record. The Court emphasized that the twin conditions of Section 37 of the NDPS Act must be satisfied for granting bail in cases involving commercial quantity.Conclusion:The Court dismissed the bail application, stating that the applicant would have ample opportunity to prove the defective sampling during the trial. The Court found no grounds for bail at this stage, emphasizing that the procedural instructions must be followed, and any non-compliance would be examined during the trial. The application was dismissed, and the pending applications were also disposed of.