AI Drafter 
TaxTMI 
TaxTMI 
2024 (7) TMI 1536
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....d items like drugs, to which both the accused persons replied in the negative. Thereafter, to ascertain the correctness of the said assertion, both the accused persons along with their baggage were then taken to the Customs Preventative Room for their personal search and examination of their baggage. 4. It is alleged that thereafter, examination of the two black luggage bags of both the accused persons was conducted by the Customs Officer. On opening the bag carried by co-accused Hamuza, 6 transparent pouches wrapped with black tape were found concealed inside false cavities along the length of the bag and 39 transparent pouches concealed within false cavities between the cardboard bindings of books were also recovered from the same bag. The recovered transparent pouches were cut open and some white powdery substance was found inside them. The white powdery substance was tested with the help of a Field Drug Test Kit, which tested positive for "Heroin". The said white powdery substance recovered from all the transparent packets was collected in a plastic container. The plastic container was marked as "X1". 5. It is alleged that thereafter, the second black luggage bag belongin....
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....ed on the case of Gopal Das v. NCB : Bail Appln. 3491/2020 wherein the Court had granted bail to the accused therein in similar circumstances and observed that mixing substances compromises the trial. 15. He further submitted that the application under section 52A of the NDPS Act for drawing the sample was filed by the prosecution after an unexplained delay of 13 days on 05.02.2021. He relied on the order in the case of Kashif v. Narcotics Control Bureau : 2023 SCC OnLine Del 2881, where it was held that the application for drawing a sample of narcotic drugs or psychotropic substances must be made within 72 hours to the Magistrate concerned under Section 52 A of the NDPS Act. 16. He further submitted that the applicant has been in judicial custody since 24.01.2021. He submitted that out of 14 witnesses cited by the prosecution, only 2 have been examined till date. He submitted that in such circumstances, when the trial is likely to take long, the matter regarding the alleged violation of procedural safeguards contained in the NDPS Act cannot be kept in abeyance for consideration during the course of trial. 17. Per contra, the learned Senior Standing Counsel for the respond....
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....or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail." 25. The accusation in the present case is with regard to the recovery of commercial quantity of contraband. Once the rigours of Section 37 of the NDPS Act are attracted, as provided under the Section, the Court can grant bail only when the twin conditions stipulated in Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual requirements for the grant of bail - (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; and (2) That the person is not likely to commit any offence wh....
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....that the drawn samples were not true representatives of the seized substance, however, at this stage, the applicant has failed to establish a prima facie case as to how he has been prejudiced on account of the delayed compliance or the alleged irregular procedure of sampling. Prejudice caused to the applicant by any procedure anomalies, including any infirmity in the procedure of drawing samples or delay in compliance of the procedure under Section 52A of the NDPS Act, will be tested during the course of the trial. 33. It is also relevant to note that two independent witnesses have been associated by the prosecution. 34. The bar under Section 37 of the NDPS Act is attracted against the applicant as commercial quantity of contraband is involved in the present case. 35. It was argued by the learned counsel for the applicant that the applicant is in custody since 24.01.2021 and the Fundamental Rights as guaranteed under Article 21 of the Constitution of India will override the statutory embargo created under Section of the 37 of the NDPS Act. 36. The applicant relied upon the judgments passed by the Hon'ble Apex Court in the case of Rabi Prakash v. State of Odisha : 2023 S....
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....ing the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law." 40. The Hon'ble Apex Court in the case of Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India : (1994) 6 SCC 731 had observed as under: "(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount. (ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall....