NDPS bail and Section 52A sampling lapse weighed with prolonged custody and no recovery from accused

Regular bail under the NDPS Act was granted where no contraband was recovered from the applicant, the seizure was from a co-accused, and the applicant had remained in prolonged custody. The Court treated the sampling process under Section 52A as significant, noting a prima facie lapse because the samples sent for forensic analysis appeared to have been drawn by the complainant before the Magistrate drew samples. It held that Magistrate-drawn sampling is the statutory course and that using non-compliant samples prima facie affects bail consideration. The Court also considered Article 21 and the rigour of Section 37 in light of the absence of recovery and extended incarceration.

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Issues: Whether regular bail should be granted in an NDPS case where no recovery was made from the applicant, the contraband was of commercial quantity, and the sampling procedure under Section 52A of the NDPS Act was prima facie not followed.

Analysis: The applicant had undergone prolonged incarceration and no contraband was recovered from him. The seizure was from the co-accused. The Court noted a prima facie procedural lapse in sampling, since the samples sent for forensic examination appeared to be those drawn by the complainant on 16.10.2019, whereas the Magistrate had drawn samples only on 01.11.2019. Relying on the statutory scheme of Section 52A of the NDPS Act and the Supreme Court authorities referred to in the order, the Court held that the drawing of samples is to be carried out by the Magistrate and that sending samples not drawn by the Magistrate for chemical analysis prima facie affects the bail consideration. The Court also treated the prolonged custody and absence of recovery from the applicant as material factors in the context of Article 21 and the rigour of Section 37 of the NDPS Act.

Conclusion: Regular bail was granted to the applicant, subject to conditions imposed by the Court.

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