TaxTMI 
TaxTMI 
2024 (10) TMI 1265
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....tive, on 12th December 2021, information was received that applicant would be arriving from Addis Ababa, Ethiopia to Terminal-3, Indira Gandhi International Airport, New Delhi by Flight ET 688 and would be carrying narcotics, pursuant to which, two panch witnesses were called by the Customs Authorities. At about 12:20 hours, applicant was intercepted by matching her passport number and date of birth after she crossed the Green Channel and was asked, in the presence of the panch witnesses, whether she was carrying any narcotic substances on her person or in her baggage to which, she replied in the negative. 3. Thereafter, notice under Section 50, NDPS Act was issued as well as another notice under Section 102 of the Customs Act, 1962 ["Customs Act"] was served upon the applicant; she was apprised of the fact that her personal search as well as baggage search could be conducted in the presence of a Gazetted Officer or a Magistrate to which, applicant gave her consent to be searched by any lady Customs Officer, and her baggage can be searched by any Customs Officer. 4. The applicant was directed to the Customs Preventive Room and her personal search was done by the lady Customs ....
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....A, NDPS Act within 72 hours of recovery of contraband. 10. Proforma Notice under Section 50, NDPS Act: It was contended that a defective notice which was issued to the applicant under Section 50, NDPS Act as the same did not indicating any 'receiving' rendered by applicant prior to her search. Said notice served on the applicant is extracted as under: 11. Defective Notice under Section 102, Customs Act: It was also contended that the notice issued to the applicant under Section 102, Customs Act was defective, in that it did not indicate the applicant's 'receiving' prior to her search. Said notice served on the applicant is extracted as under: 12. Delay in Trial: It was submitted that the applicant was arrested on 12th December 2021 and till date, only 2 witnesses out of 16 witnesses has been examined, in light of which, it is likely that the trial will take an excruciatingly long time during which, the applicant claiming innocence cannot be made to undergo prolonged incarceration. 13. In support of their arguments, counsel for applicant relied on the following judicial precedents: a. Kashif v. Narcotics Control Bureau 2023 SCC OnLine Del 288; b. Vinod ....
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....62/2002 decided on 17th February 2003; k. State of M.P. v. Kajad (2001) 7 SCC 673; l. Union of India v. Rattan Mallik, (2009) 2 SCC 624; and m. Khet Singh v. Union of India (2002) 4 SCC 380. Analysis 17. Heard counsel on behalf of parties and perused the material placed on record. At the outset, reference may be made to the substance that was seized from the instance of the applicant i.e. Methaqualone which is a psychotropic substance, as envisaged in the NDPS Act. Psychotropic substances are defined in Section 2(xxiii) of the NDPS Act and included in the Schedule to the NDPS Act: "(xxiii) "Psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;" 18. The United Nations Office on Drugs and Crime Manual on "Recommended Methods for the Identification and Analysis of Methaqualone/Mecloqualone"^1 explains the substance Methaqualone as a quinazolone derivative first synthesized in 1951, and used medically as a hypnotic for the short-term treatment of insomnia. It is also rampantl....
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....e recovery of contraband at the instance of applicant was on 12th December 2021 and seizure was done on the same day in this case. However, applicant states that the application under Section 52A, NDPS Act was moved on 24th December 2021 i.e. after a delay of 12 days, way after 72 hours. 22. In respect of this objection, it is noted that SO 1/89 does not prescribe specific time-period for moving said application. SO 1/88 requires samples to be dispatched to the FSL not later than 72 hours. 23. The Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 traversed the international background and need and necessity to enact the NDPS quite succinctly. For the sake of brevity, a short portion is being extracting to capture the essence of the discussion therein as follows: "24. The NDPS Act has been enacted, inter alia, to implement International Conventions relating to narcotic drugs and psychotropic substances to which India has been a party and also to implement the Constitutional policy enshrined in Article 47 of the Constitution of India, which casts a duty upon the State to improve public health and also to prohibit consumption, except for medicinal purposes....
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....view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended." (emphasis added) 25. The Supreme Court in Ram Samujh (supra), while referring to punishment under the NDPS Act and adverse effects of these activities, also referred to the decision of the Apex Court in Durand Didier v. Chief Secy., Union Territory of Goa (1990) 1 SCC 95; relevant portions of Duran Didier (supra) are reproduced as under: "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on t....
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....y 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 and a half month, thus, raising doubt with regards to tampering of the same. 26. Another reason which persuades me to take this view is that once the Apex Court has held in Mohanlal (supra) that the application under 52A has to be made without any undue delay, there should not be any reason for delaying the filing of application. 27. The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case, the same has not been moved, the reasons for delay must be explained by the authorities. Reasonable time under section 52A 28. What is reasonable time depends on the facts and circumstances of each case. However, it....
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.... (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 explained by the prosecution during the course of trial and is not fatal. 58. As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time." (emphasis added) 31. Although in Sovraj (supra), this Court had enlarged the accused on bail, same was done inter alia on the issue of absence of independent witnesses and lack of photogra....
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....ch does not form part of body is outside the ambit of the word "person" occurring in Section 50 of the NDPS Act. 96. What is most important to note in Pawan Kumar (supra) is that the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is that although in Pawan Kumar (supra) the search was of the accused as well as the bag, yet since the recovery of the contraband was only from the bag, this Court took the view that Section 50 would have no application. ... 103. Accordingly, Section 50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag." (emphasis added) 33. As noted by the Supreme Court in State of Himachal Pradesh v Pawan Kumar 2005 4 SCC 350, the search was both of applicant as well as of the luggage she was carrying, but since nothing was recovered from her personal search, Section 50 would not apply. 34. However, a note of caution is to be made regarding these proforma notices as repr....
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....r the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empo....
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....kgs of ganja and the petitioner was in custody for about two and a half years, the Supreme Court while granting bail, stated as under: "3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed." iii. In Man Mandal & Anr. v State of West Bengal 2023 SCC OnLine SC 1868 where the seizure was commercial in nature and the petitioner had been incarcerated for about two years and there was no hope of the trial concluding soon, the Supreme Court while granting bail stated as under: "6. Taking into consideration the fact that the petitioners have been incarcerated for a period of almost two years and the trial is not lik....
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....idering the question of grant of bail to an accused facing trial under the NDPS Act in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [(1994) 6 SCC 731 : 1995 SCC (Cri) 39] this Court had observed that though some amount of deprivation of personal liberty cannot be avoided in such cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 of the Constitution would receive a jolt. It was further observed that after the accused person has suffered imprisonment, which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21. We regret to note that despite it all, there has not been visible improvement on this front." (emphasis added) 40. In light of the above discussion, taking into consideration four times the commercial quantity of contraband seized from the instance of the applicant, there being no prejudicial infirmity in the process adopted by the respondent, rigours of Section 37, NDPS Act, and progressing trial, this Court is unable to reach a prima facie conclu....