TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1548
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....hus forwarded to the concerned superior in compliance of Section 42 of the NDPS Act. 3. Resultantly, a preventive team was constituted which left for conducting raid at the applicant's shop. On reaching there at 13:45 PM, the preventive team along with the independent witnesses went to the applicant's shop and informed him about the secret information and that his shop had to be searched. 4. Before search, the accused was made aware about his rights in compliance with Section 50 of NDPS Act and the preventive team offered their search before the search of applicant and his shop. After search of the preventive team, the search of the applicant's shop was conducted. During the search of the shop of the applicant, 9 types of medicines, alleged to be NDPS medicines, were recovered. 5. The complaint further alleges that during search of the said shop, the preventive team found a broken wall which was the passage to another shop, which was locked. Upon breaking the said lock, in addition to the above, 17 types of NDPS medicines were also found, alleged to be stored by the applicant. 6. Later, the applicant voluntarily disclosed that few medicines containing narcotics substance, were ....
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.... disposal of seized narcotic drugs and psychotropic substances, in the presence of a Magistrate. 12. The learned counsel for the applicant then submits that nonpreparation of the seizure memo on the spot was deliberate and intentional and thus is violative of Khet Singh vs. Union of India (2002) 4 SCC 380, wherein it has been held as under: "10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no ....
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....he concerned jail authorities. 16. Learned Senior Standing Counsel appearing for the State, opposed the present application placing reliance on the judgment of the Hon'ble Supreme Court in Supdt., Narcotics Control Bureau, Chennai vs. R. Paulsamy (2000) 9 SCC 549 as well as on the judgments of coordinate benches of this Court in judgment dated 31.05.2023 in BAIL APPLN. 2894/2022 titled Masibur Khan vs. State (Govt of NCT of Delhi) and order dated 23.11.2021 in BAIL APPLN. 3248/2021 titled Naveed Ummer Sheikh vs. Narcotic Control Bureau. The learned Senior Standing Counsel relying on the aforesaid judgments submits that the compliance of the mandate of Standing Order No.1 of 1988 is to be examined at the stage of trial and not at the present stage i.e., while considering application for grant of bail to the accused-applicant. The learned Senior Standing Counsel has placed reliance on para 6 of R. Paulsamy (supra) which reads as under: "6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence....
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....traband seized in the Court. It is pertinent to note that the case property is still there for any further analysis if so required. Therefore, it is premature at this stage to say that the sample drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed." 18. The learned Senior Standing Counsel further relies on Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India (1994) 6 SCC 731 to submit that in cases of offences punishable with a minimum of 10 years under the NDPS Act, the undertrial prisoner may be considered for release on bail on account of delayed trial, only after lapse of 5 years as an under trial prisoner. He placed reliance on para 15 of Supreme Court Legal Aid Committee (supra), relevant part whereof is as under: "15. ......(iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail....
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....ideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance. The procedure prescribed under Section 52A NDPS Act and as ordained by Supreme Court in Mohan Lal (supra) is required to be mandatorily followed however, the issue in the present case is whether non-compliance of this procedure which is applicable for disposal of the narcotic drugs and psychotropic substances would vitiate the trial in case immediately on seizure samples are drawn in the absence of a Magistrate even before they are deposited in the malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating age....
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....nsequences thereof. As has already been held by a coordinate Bench of this court in judgement dated 31.05.2023 in BAIL APPLN. 71/2023 titled Quentin Decon vs. Customs, wherein it is held as under: "27. As noted above, the Hon'ble Supreme Court, in Balbir Singh (supra) observed that the provision of Section 52 of the NDPS Act is directory in nature. It was further held that non-compliance of the said provision, in itself, cannot render the actions of the investigating officers as null and void. It would have to be demonstrated that in the facts and circumstances of a particular case, whether such non-compliance caused prejudice to the accused and resulted in failure of justice. It was further held that if there is no proper explanation for non-compliance, then the same will have an effect on the case of the prosecution and the Courts will have to appreciate the evidence and material placed on record in the case in order to determine the issue. Whether non-compliance of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied , will have to be examined consi....