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2023 (5) TMI 1383
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....noop Kumar (JIO) to take necessary action. B. In pursuance of the above said directions, a team was constituted and on the same day at around 3pm the team departed from NCB office and reached DHL office at around 3:40pm. Thereafter, at DHL Express office the team disclosed the information to the Supervisor, Mr. Ankur Singh who joined the team as independent witness. C. The said parcel was opened in which 11 lace rolls and 3 pieces of clothes were found. After checking one lace roll it was found to contain 120 strips of Tramadol tablets, 10 tablets in each strip. The remaining lace rolls were examined and led to the discovery of total 13200 strips of Tramadol tablets. The panchnama was prepared on the spot i.e., 24.02.2022. The contraband was seized, sealed and deposited in the Malkhana on 24.02.2022. On 25.02.2022, the JIO, Anoop Kumar submitted the seizure report. D. On 24.02.2022, during the course of enquiry the above said officials got the information from the owner of the DHL office that the said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary. He was apprehended on 25.02.2022 by the team of the Respondent. ....
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....urier which was recovered by the NCB officials contained 11 lace rolls. The case of the prosecution is that one lace roll was opened and it was found to contain 120 strips of Tramadol tablets wrapped and concealed inside lace roll. Thereafter, one of the strips was opened and found to contain 10 tablets which were taken in a transparent zip-lock pouch and was mixed with all the strips (120*11=1320) and put in a gunny bag. The same procedure has been adopted by the NCB officials in relation to the other couriers which were allegedly recovered later and hence, they have flouted the procedure laid down by this Hon'ble High Court in Basant Rai v State, 2012 SCC OnLine Del 3319. D. He states the procedure of sampling has to be done in accordance with the directions given by Apex Court in Gaunter Edwin Kircher versus State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) decided on 16.03.1993 in which it was clarified that sample has to be taken from each packet. While in the present set of facts, the NCB officials have not taken the sample from each lace roll, rather sample was taken from only one lace roll, thus, violating the sampling procedure. E. The learned coun....
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....sed Ganesh Chaudhary who allegedly used to courier the parcels from Delhi to foreign countries. He also states that the investigation has been completed and there is no whisper in the entire complaint of "source" from where these tablets were procured by the Applicant and co-accused persons. 4. Per contra Mr. Bansal, learned standing counsel for the Respondent argues the following: A. He states that there is no delay in filing application under Section 52A of the NDPS Act. He states that the Act does not provide any statutory time frame in moving an application for drawing of sample before the Magistrate under Section 52A of the NDPS Act. Relying on the judgment of Mohanlal (supra), he states that the Hon'ble Supreme Court categorically declined from stipulating any exact time period for the purposes of making an Application under section 52A before the Magistrate seeking drawing of samples and correctness of inventory. B. Even assuming, without admitting, that there was a delay in moving application under Section 52A of the NDPS Act, he states that the applicant is barred from raising this issue today. The application under Section 52A of the NDPS Act for coll....
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....r manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad v. Emperor [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)] and also by this Court in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527 : (1961) 2 Cri LJ 705], AIR at para 9 and also in State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] reported in AIR at para 8. ... ... 47. It is well known that the legislature does not waste words or say anything in vain or for no purpose. Thus, a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. In the instant case there is no compelling reason to accept the construction put forward by the respondents." F. He has relied on the judgment of Arvind Yadav In JC Through His Pairokar v. Govt Of NCT Delhi Through Standing Counsel in BAIL APPLN. 1416/2021 (2021:DHC:1965) wherein a coordinate bench of this court while considering the issue of non-compliance of Section 52A NDPS and whether petitioner is entitled to bail on this ground al....
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....ection (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctress of the inventory so prepared; or (b) taking in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon....
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.... in State of Kerala v. Kurian Abraham (P) Ltd. [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature. 91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution." 12. The punishments provided under the NDPS Act are punitive and therefore, to balance the interests of an accused, it is imperative that a strict compliance of the provisions of the law are made. 13. The Supreme Court in Mohanlal (supra) considering both, the Standing Order 1/89 and Section 52A emphasized that even under section 52A NDPS Act, application for drawing of samples and certification must be ....
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.... certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period a....
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....on has to be made for collection of sample to the magistrate. The time frame is provided in Standing Order 1/88 and that too, only in the context of sending the sample to FSL. 16. Guidelines prescribed in the Standing Orders cannot be flouted and their substantial compliance must be insisted upon as observed in Noor Aga (supra). This court has already held Standing Order 1/88 to be mandatory in the judgment of Laxman Thakur v. State in BAIL APPLN. 3233/2022 (2022/DHC/005591). Resolving the Ambiguity 17. If the argument of the respondent is accepted that Section 52A of the NDPS Act does not contemplate a timeframe within which the application is to be moved, the same would be contrary to the legislative intent. It is settled principle of law that where a statute does not provide a particular time limit, the same can be inferred from the guidelines and/or has to be within reasonable time. 18. In Mohanlal (supra), the Hon'ble Supreme Court in para 19 has opined that "...The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for presc....
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....adopted by the trial court, especially its observations highlighted above. The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better." (emphasis supplied) 24. Hence, I am of the view that non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering. 25. In the present case, the sample was kept in the custody of the prosecuting agency for more than one ....