TaxTMI 
TaxTMI 
2024 (7) TMI 1538
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....apprehended by the raiding team. The said boy disclosed his name to be Barun Kumar Bantawa (co-accused). On searching his bag, 23 brick type pieces in transparent polythene were found. It is alleged that 11 Kg 592 gram of Charas was recovered. 3. The co-accused disclosed that he along with his friend, that is, the applicant, used to bring Charas from Nepal to supply the same in Delhi. On the basis of the disclosure of the co-accused, the applicant was apprehended on 16.02.2021. A notice under Section 50 of the NDPS Act was served upon the applicant. It is alleged that the applicant disclosed that he had Charas in his bag. On searching the bag of the applicant, 10 bricks total weighing 4.396 kg of Charas were found. It is alleged that the applicant disclosed that he along with the co-accused had brought 16 kg of Charas on 15.02.2021 from Nepal. 4. Upon completion of the investigation, the chargesheet in the present case was filed for offences against the applicant and the coaccused, for offence under Section 20 of the NDPS Act. 5. The alleged recovery is of commercial quantity of contraband. 6. The learned Trial Court dismissed the regular bail application moved by the a....
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....aryana : 2007 SCC OnLine P&H 213 13. The applicant has relied upon the judgements in the cases of Tamir Ali v. Narcotics Control Bureau : 2023:DHC:3545, Amina v. State NCT of Delhi :2023:DHC:4024, Sarvothaman Guhan v. Narcotics Control Bureau: 2023:DHC:6614, Krishan @ Babu v. The State Govt of NCT of Delhi : Bail Appln. 2804/2023, Gurpreet Singh v. State of NCT of Delhi : 2024:DHC:796 and Hikmatullah Hikmati v. Narcotics Control Bureau : 2024:DHC:1263, wherein Coordinate Benches of this Court have granted bail to the accused person therein after considering the factum of delay in filing of application under Section 52A of the NDPS Act. He argued that it has been held in the said cases that the benefit of such violation will accrue to the accused person at the time of consideration of bail. 14. He submitted that the applicant has satisfied the bar under Section 37(1)(b)(ii) of NDPS Act of establishing reasonable grounds for believing that he is not guilty of such offence. 15. He submitted that the applicant has been in custody for more than 3 years and that there is no possibility of the applicant influencing the witnesses. He submitted that applicant has clean antecedents ....
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.... settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc. Rigours of Section 37 of the NDPS Act 24. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under: "37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involv....
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....y to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (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, ps....
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....ned Magistrate were sent to FSL on 30.04.2021. Scope of Section 52A of the NDPS Act 30. The learned counsel for the applicant has stressed that noncompliance of provision of Section 52A of the NDPS Act is fatal for prosecution. In this regard, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Union of India v. Mohanlal (supra), where it was held that it is mandatory that sampling needs to be done before the learned Magistrate without loss of time. Directions were also issued to the Central Government and State Governments to designate an officer for respective storage facility and to provide for other steps, including measures such as stipulated in Standing Order No. 1/89 dated 13.06.1989 (hereafter 'Standing Order No. 1/89') to ensure proper security against theft or replacement of the seized drugs. The relevant portion of the said judgement is reproduced hereunder: "15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipula....
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....ove direction. 19. Mr Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and 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 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we....
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....on by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. 6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn... xxx 8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish sei....
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....istence, that the certificate is required to be pressed into service to prove the recovery. The certificate of the magistrate is treated as primary evidence. 40. While the mere non-observance of the procedure prescribed in Section 52A of the NDPS Act will not vitiate the trial where the contraband has not been disposed of, the same would cast a doubt as to why the prosecution did not seek to destroy the same or legitimize the inventory by preferring an application under Section 52A of the NDPS Act. The said doubt can be duly overcome by the prosecution by justifying the delay in moving an application. 41. The Hon'ble Apex Court in the case of Jitendra v. State of M.P. : (2004) 10 SCC 562 observed as under: "6. ... In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge ....
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....llegedly seized bulk quantity of contraband material nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence." (emphasis supplied) 43. It is thus clear that the onus is on the prosecution to exhibit the bulk of the contraband when the same has not been disposed. 44. In other words, if the seized goods are in existence and it can be proved by leading reliable evidence, that is, the actual goods that have been seized can be produced, a certificate of magistrate then acquires the nature of secondary evidence and cannot be treated as primary evidence under law. From a holistic reading of section 52A of the ND....
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....alid and another v. The State of Telangana: (2024) 5 SCC 393, the Hon'ble Apex Court had held that in the absence of proceedings under Section 52A of the NDPS Act, the FSL report of the samples would be akin to waste paper and could not be read as evidence. 51. Insofar as the judgments in the case of Yusuf v. State(supra) and Mohammed Khalid and another v. The State of Telangana (supra) are concerned, they appear to be cases where the muddamal or contraband was disposed of. No arguments to the contrary are noted in the judgments. The said judgments, in the opinion of this Court, will not apply in a case where contraband is not destroyed. From a bare reading of these judgments, it is clear that the Hon'ble Supreme Court was dealing with a situation wherein the muddamal or contraband was destroyed and the original seizure of contraband was not available with the court for being proved as per the Indian Evidence Act, 1872. 52. While no certificate of destruction is present on record to evidence that the contraband is disposed of, in the present case, the contraband has not been exhibited in the Trial Court. On being asked, it was stated that even though the application was filed....
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....plated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances." Belated filing of application under Section 52A of the NDPS Act 55. It is relevant to note that the case at hand does not relate to the non-filing of the application under Section 52A of the NDPS Act. In the present case, it is argued that the application has been filed belatedly. 56. The applicant has relied on the judgment in the case of Kashif v. Narcotics Control Bureau: 2023 SCC OnLine Del 2881. The relevant portion of the judgment is reproduced hereunder: "24. Hence, I am of the view that non-compliance of section 52A within a reasonable time gives ri....
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....collection procedure and the benefit of the same must accrue to the Applicant. 32. The application by the respondent under section 52A was filed after a delay of 51 days. At that time, the applicant did not object. However, the same being a legal objection can be raised at any stage. 33. The applicant has been in custody since 07.03.2022 and more than a year has passed since then. No further custodial interrogation of the Applicant is required. No recovery was made from the Applicant or at his instance. Therefore, the embargo of Section 37 NDPS is not applicable on the Applicant." (emphasis supplied) 57. It is pertinent to note that the Hon'ble Apex Court in the case of Union of India v. Mohanlal (supra) had specifically noted that while the process of sampling cannot be left to the whims of the prosecution and the application for sampling and certification ought to be made without undue delay, there was no room for prescribing or reading a time-frame into the provision. Though no timeframe has been incorporated in the provision, the application should be made without undue delay. The cause of delay, however, in the opinion of this Court, can be explai....
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....or compliance of Section 52A of the NDPS Act and though it is desirable that the procedure under Section 52A of the NDPS Act is complied at the earliest, mere delay in the same will not be a ground for bail. It was noted that the onus will be on the applicant to show the prejudice caused on account of the delay. 63. The order passed in the case of Somdutt Singh @ Shivam v. Narcotics Control Bureau (supra) was challenged before the Hon'ble Apex Court in Special Leave Petition (Crl.) No. 415/2024. By order dated 16.05.2024, the Hon'ble Apex Court has dismissed the said special leave petition. 64. In the present case, evidently, the application under Section 52A of the NDPS Act was preferred almost two months after the seizure of the contraband from the applicant. It is open to the applicant to press the aforesaid defence at the time of the trial. 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. In the opinion of this Court, any observation as to the veracity of the recovery on account of delay to grant bail to the applicant would be premature. Improper Sampling: Non-C....
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....ght, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/ the package/ container may be carefully bunched in lots of 10 packages/ containers may be bunched in lots of 40 such packages such packages/ containers. For each such lot of packages/ containers, one sample in duplicate may be drawn. (c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/ containers remains, and in case of other drugs less than 5 packages/ containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/ containers. (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/ container of that lot and mixed together to make a composite whole from which the samples are drawn from that lot. 1.8 Numbering of packages/containers ....
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.... 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be draw in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is draw. 2.4. In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5. However, when the pac....
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....ions may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. 3.1 After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes." (emphasis supplied) Nature of Standing Orders 70. The Hon'ble Apex Court in the case of Union of India vs Bal Mukund : (2009) 12 SCC 161, observed as under: "10. The manner in which a sample of narcotic is required to be taken has been laid down by the Standing Instruction No. 1/88, the relevant portion whereof reads as under: "e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/ container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." xxx 39. There is another aspect of the matter which cannot also be lost sight of. Standing....
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....ties are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx 14. In State of H.P. v. Pirthi Chand [(1996) 2 SCC 37 : 1996 SCC (Cri) 210] it was held that it would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor th....
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....for search of the accused and the resultant seizure of the contraband. As discussed above, the Standing Orders issued by the Government from time to time, while exercising power under Section 52A of the NDPS Act, though are a requirement of law which need to be substantially complied with, however, the intent and the provisions thereof, in the opinion of this Court, cannot be imported in the procedure for search and seizure at the time of investigation. As noted in Paragraph 54 above, the said aspect has been clarified by the Hon'ble Apex Court in State of Punjab v. Makhan Chand (supra). 76. Be that as it may, as noted in Khet Singh v. Union of India (supra), even if it is to be accepted that there is some deviation in the sampling of contraband, there can be circumstances that justify the deviation from the procedure. The same alone will not render the seizure inadmissible. Whether there was any possibility of the evidence being tampered with or any serious prejudice is caused to the applicant is to be seen during the course of the trial. Effect of non-compliance at the stage of bail 77. The applicant has placed reliance on the judgment in the case of Santini Simone v. De....
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....g Order 1/1989 dated 13.06.1989, issued by Department of Revenue, Ministry of Finance, Government of India). The Court held that where more than one container/package is found, it is necessary that samples be drawn from each separate container/package and be tested with a fieldtesting kit. If the container/packages are identical in shape, size and weight then lots of 10 or 40 container/packages may be prepared. Thereafter, representative samples from each container/package be drawn. 59. In Basant Rai (supra), a Coordinate Bench of this Court considered a case where the accused was allegedly found carrying a polythene bag, containing eight smaller polythene bags, containing a brown colour substance, which was alleged to be charas. The Investigating Officer had taken small pieces from each packet and mixed the same and thereafter, drawn two samples which were sent to FSL for analysis. The Court found fault with the said procedure and allowed the appeal. The Court held as under: "25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were....
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.... the sample is a true representative of the substance recovered, before it can be assumed that the composition of the sample is the same as that of the recovered substances. xxx 73...The print out of the test result would indicate the number of tests conducted. If the contents of each of the packet was tested separately, there would be four such print-outs or one print-out recording the result of four such tests. However, the print out in question has not been brought in evidence, even though it is stated that it was in the possession of PW-4. It is also material to note that it is not the prosecution's case that any heroin was recovered from the appellant. The CRCL test result also does not disclose any presence of heroin in the sample sent for analysis. But the alleged test had also returned a positive result for heroin. 74. In view of the above, this Court is unable to accept that the prosecution has established that the contents of each of the four packets that were allegedly recovered, were tested and found to be charas prior to the contents of the said packets being placed together. 75. Although PW-4 had stated in his cross-examination ....
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.... representative and its composition was likely to vary significantly and the same was a reasonable ground to doubt the accused person's guilt. 82. Bail was granted by this Court where the sampling procedure followed by the prosecution was not in conformity with the Standing Orders on the basis of similar observations in Gurpreet Singh v. State of NCT of Delhi (supra), Sarvan v. State Govt. of NCT of Delhi: Bail Appln. 2781/2022, Sandeep @ Chiku v. State (NCT of Delhi) : 2024:DHC:528 and Ginkala Meddilety v. the State : Bail Appln. 1133/2022. 83. The prosecution has primarily argued that the procedural lapses have to be determined during the course of the trial and not in a proceeding for grant of bail. They have relied on a judgment of a Coordinate Bench of this Court in Shaildender v. State NCT of Delhi: Bail Appln. 3508/2021. 84. The prosecution has also relied on the judgment of the Hon'ble Apex Court in the case of State of Punjab v. Balbir Singh : 1994 3 SCC 299 where it was held that while officers cannot totally ignore the provisions under NDPS Act, mere non-compliance will not vitiate the prosecution. It was held that prejudice caused by the noncompliance would ....
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....s occasions that the police officials fail to strictly adhere to the minute intricacies of the mandate of the standing instructions. Even though the same shows an abysmal state of affairs, this Court is of the opinion that accused persons cannot be allowed to go scot free on minute irregularities in procedure especially when the prosecution has the opportunity to furnish credible explanation. 92. Prima facie, prejudice caused to the applicant due to the procedural lapse is to be seen in such a case. The lapse should be such that it leaves no conclusion other than the trial being vitiated. Noncompliance of standing orders would, at best, cast suspicion over the veracity of the samples of the seized substance. The same can be overcome by the prosecution by producing evidence to the contrary. 93. Any observation to this effect, at this stage, would be premature. Infirmities in the procedure, if any, will be tested during the course of the trial. 94. This Court is thus not inclined to grant bail to the applicant on the ground of improper sampling. Non-Joinder of Independent Witnesses and No Photography/ Videography 95. The learned counsel for the applicant has also raise....
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....afhi Mohd. v. State of H.P. (supra), after taking note of the technological advancements, had passed certain directions. The Hon'ble Apex Court had emphasised the role of audio-visual technology in enhancing the efficacy and transparency in the Police investigations. 101. This Court also noted that realising the need of change in time, the Legislature has now passed the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS'), where the practice of photography and videography has now been made mandatory as part of the investigation. 102. This Court also noted that the procedure prescribed in NCB Handbook which has been adopted by the Delhi Police may be argued to be not binding, however, it cannot be denied that the same has been prescribed as the best and crucial practice for obtaining evidence in order to avoid the allegation in regard to foul play. 103. Thus, while it is true that the effort, if any, made by the prosecution to have the search conducted in the presence of the independent witnesses would be tested during the course of trial and the same may not be fatal to the case of the prosecution, however, the benefit, at this stage, cannot be denied to the accused. Delay....
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....4023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily." (emphasis supplied) 106. The Hon'ble Apex Court in Rabi Prakash v. State of Odisha : 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under : "4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally milit....
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....under Article 21 of the Constitution of India. Delay in trial would, therefore, be one of the consideration that would weigh with the Court while considering as application filed by the accused for being released on bail." 111. From the foregoing, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. 112. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guarantee under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act. 113. In the present case, the trial is likely going to take long. Speedy trial in such circumstances does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time. CONCLUSION 114. In view of the aforesaid discussion, this Court is of the opinion that the applicant h....