TaxTMI 
TaxTMI 
2024 (10) TMI 1362
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....nd 2. As per the prosecution's narrative, on 11th January 2022, applicant arrived at Terminal-3, Indira Gandhi International Airport, New Delhi ["T- 3 IGI Airport"] by Flight G9 721 from Entebbe, Uganda to Delhi via Sharjah, United Arab Emirates. Applicant was carrying a red-coloured trolley bag and a leather handbag. On arrival, the applicant was asked to get her baggage scanned through X-Ray baggage inspection machine as also to pass through the Door Frame Metal Detector; nothing objectionable was found on her person. During X-ray check the applicant's baggage, certain suspicious images were noticed pursuant to which, she was directed to the Customs Preventive Room and asked whether she is carrying any contraband to which, she responded in the negative. Two panch witnesses were called to witness the search and further proceedings. 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 t....
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....n 52A NDPS Act was moved by the authorities on 29th January 2022, before the court for drawing samples. Thus, there was a delay of about 20 days in moving said application; same is in contravention with the law which prescribes moving of the application under Section 52A within 72 hours of recovery of contraband. 9. 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 indicate any 'receiving' rendered by applicant prior to her search. Said notice served upon the applicant is extracted as under: 10. 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 upon the applicant is extracted as under: 11. Delay in Trial: It was submitted that the applicant was arrested on 11th January 2022 and till date, only 2 out of 13 witnesses have been examined, in light of which, it is likely that the trial will take an excruciatingly long time during which, the applicant clai....
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....far Shaikh & Ors (2003) 8 SCC 50; h. State v. Syed Amir Hasnain (2002) 10 SCC 88; i. Supdt. Narcotics Control Bureau, Chennai v. R. Paulsamy 2001 SCC (Crl.) 648 (SC); j. Sanjeev Kumar v. NCB Crl Misc (M) No.3962/2002 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 16. Heard counsel on behalf of parties and perused the material placed on record. The seizure in this case was on 11th January 2022 upon interception of the applicant at T-3 IGI Airport upon her entry into India from Uganda. On a preliminary check, she denied carrying any contraband, however, a search of her bags revealed 107 capsules of substance, the total weight of it being 1.253 kgs. The contraband was seized. All 107 capsules were opened and found to have heroin, the total weight 1.061 kgs with a value about Rs 7.43 crores. The threshold for commercial quantity of heroine is 250 grams, the seized contraband therefore, was at least four times that quantity. Sampling Procedure 17. The first objection has been tak....
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....ders may be obtained for pre-trial disposal under Section 52A(2), NDPS Act and an application pertaining to the same be made to the Magistrate after proper inventorisation has been achieved; ix. Magistrate would allow an application as soon as possible and go through the process of certifying the inventory, taking photographs, drawing representative samples and certifying the same, followed by disposal. 19. The above are relevant steps in the procedure, aside from other attendant guidelines. Notably, considering there is no procedure in the NDPS Act itself, SOs are usually relied upon as guideposts for proper acceptable seizure and sampling. 20. A view has been taken in various decisions of the Supreme Court [Noor Aga v. State of Punjab (2008) 16 SCC 417; Union of India v. Bal Mukund, (2009) 12 SCC 161; Basant Rai v. State, 2012 SCC OnLine 3319] as well as this Court including [Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128; Amani Fidel Chris v. Narcotics Control Bureau, 2020 (2) LRC 238 (Del); Betty Rame v. Narcotics Control Bureau, 2023 SCC OnLine Del 3279; and Amina v. State (NCT of Delhi) 2023 SCC OnLine Del 3491] that the SOs ought to be respe....
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....which would determine whether the threshold of Section 37, NDPS Act is overcome or not. This, in the opinion of this Court, is what imbues an assessment at the stage of bail. Circumstances can vary hugely of sampling and seizure and it may not be correct to place them in discrete and inflexible silos. 23. In the facts of this case, the seizure was made at the airport in a supervised environment where capsules were found to be containing heroin. As noted, there is no prohibition at least pre-December 2022 [when the notification issued by the Ministry of Finance, Government of India came into effect] in drawing the samples at the stage of seizure. Considering that the seized capsules would not comply with the definition of either "package/container", it would have to be seen whether the process adopted to cut open all 107 capsules and mixing them together in a homogenous mixture would cause any prejudice to the accused. As noted above, it is mandated that the drugs should be well-mixed to make them homogenous before drawing a sample. Guidelines in terms of multiple packages/containers require an option of bunching them in lots. The phrase used in clause 2.5 of SO 1/89 is "may be c....
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....of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt." (emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. ... 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act shoul....
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....ions of seizure of commercial quantity of contraband, rigours of Section 37, NDPS Act apply; bare text of the provision 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 involving commercial quantity shall be released on bail 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." ....
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....on, Court in Somdutt Singh @ Shivam (supra) observed as follows: "16. Furthermore, recently a Co-ordinate Bench of this Court in Surender Kumar (supra) has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines. 17. It is clear from a reading of the aforesaid judgments that there is no mandatory time duration prescribed for compliance of Section 52- A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act." (emphasis added) 32. The decision in Somdutt Singh (supra) was challenged before the Apex Court in Special Leave Petition (Crl.) No. 415/2024. By order dated 16th May 2024, Court dismissed the sa....
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....d with only in cases of personal search and not where it is of the bag of the person being searched. Relevant portions of Ranjan Kumar Chadha (supra) are extracted as under: "93. Thus, in Pawan Kumar (supra) the larger Bench while answering the reference in no uncertain terms stated that "a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being." 94. The Court reasoned that a person of varying capacity can carry different items on his or her body but that does not make those items as a part of body. The Court observed, "Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would....
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.... person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female). 38. Customs is well-advised to alter their proforma notices to introduce the above options in consonance with requirements of Section 50 as sanctified by decisions of Supreme Court inter alia in Ranjan Kumar Chadha (supra). In this regard, following paragraphs of the said judgment have been reproduced below for reference: "64. There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having express....
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....rial and prolonged incarceration, though being recognized by the Supreme Court as an inalienable right under Article 21 of the Constitution of India cannot have a formulaic application. There have been various decisions of the Supreme Court on the aspect of delay in trial, the relevant paragraphs of the same have been extracted as under: i. Rabi Prakash v State of Odisha 2023 SCC OnLine SC 1109 where a recovery of 247 kgs of ganja was made and the petitioner had been in custody for more than three and a half years, with no criminal antecedents, the Court 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 militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation....
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....n trial will depend of facts and circumstances of the case. Whether 2 or 3 years or more, or any other time period is "prolonged", is clearly left to the assessment of the Court. 41. In this case, the petitioner has undergone 2.5 years of custody and the trial is progressing. An attempt may be made by the Trial Court to expedite the trial. In the event, that the trial does not proceed ahead expeditiously, needless to state that the applicant will have the right to approach the Court at a subsequent stage. 42. In this regard, it is to be noted that in the decision of the Supreme Court in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731 in context of incarceration as an undertrial and delay in disposal of cases it was stated inter alia that when an undertrial is charged with offences with minimum imprisonment of 10 years, and if they have been in jail for not less than 5 years, they may be released on bail upon furnishing bail bond in the sum of Rupees 1,00,000/- with two sureties for like amount. This view has been endorsed in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 603 as under: "4. Time and agai....
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....INAL-3, IGI AIRPORT, NEW DELHI-110037 NOTICE UNDER SECTION 50 OF THE NDPS ACT, 1985 Whereas, Ms. Pauline Nalwoga (D.O.B- 01.07.1992), D/o Shri Sendegeya George William, R/o Namugongo, Janda, Ugandalas told by the pax), holder of Uganda Passport No. A00435525 issued on 15.06.2021 & having date of expiry 14.06.2031, arrived on 11.01.2022 at Terminal-3, IGI Airport, New Delhi by Flight No. G9 721 dated 10.01.2022 from EBB to SHJ and further through flight No. G9 463 dated 10.01.2022 from SHJ to Delhi. And, whereas, it is informed that she is suspected to be in possession of Narcotics Drugs/Psychotropic Substances. Hence her personal search and search of her baggage is required. As per Section 50 of the NDPS Act, 1985, it is her legal right that her personal search and search of her baggage could be conducted before a Magistrate or a Gazetted officer. Dated: 11.01.2022 سلام 11/1/22 (Ritu Rani) Air Customs Officer IGI Airport, New Delhi I, Pauline Nalwoga (D.O.B- 01.07.1992), have no objection for my personal search to be conducted by a lady Customs Officer and search of my baggage to be conducted by any Custom....