TaxTMI 
TaxTMI 
2025 (4) TMI 2159
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....A 5332/24. 2. Applicants - Accused have filed the present Applications for regular bail in connection with N.D.P.S. Spl. Case No.1121 of 2023 arising out of Crime No.15 of 2023 registered with Narcotics Control Bureau for offences punishable under Sections 8(c) r/w 21(c), 23(c), 27A, 28, 29, 30, 35 and 54 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (for short, "NDPS" Act). 3. On 25.03.2025, the present Bail Applications were fully heard except for the learned Special Public Prosecutor on behalf of the Union of India in Bail Application No.5332/2024 who entered appearance for the first time on that date and requested the Court to allow her to file Affidavit-in-Reply and make submissions, pursuant to which the following order was passed :- "1. Heard. 2. This is a group of two Bail Applications. In Bail Application No. 1596/24, Applicant - Frank Chibuzor Nandi is a foreign national whereas in Bail Application No. 5332/24, Applicant - Augestin Sunderraj Nadar is an Indian national. Augestin is arraigned as accused No. 1 and Frank is arraigned as accused No. 2 in the crime in question. Both the Applicants are indicted in an NDPS offence. Accused N....
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....ere is no certification of the samples which can be seen from the certificate of Magistrate appended at page No. 215 of the Application. Neither the said certificate is issued in Form 5 on the statutory Application filed as required by the Rules. He would submit that this transgression is covered by the decision of this Court in the case of Chandrabhan Janardhan Yadav v. State of Maharashtra [Order dated 04.03.2025 passed in BA No. 2254/2024 & Connected Bail Applications]. 3.1 Next Mr. Khan would persuade me to consider the role of the Applicant. He would submit that according to the prosecution case and as stated in the seizure panchnama in order to apprehend Applicant - accused No. 2, the statement of accused No. 1 was recorded under Section 67 of the NDPS Act and it is stated therein that it was accused No. 2 who had facilitated the travel of accused No. 1, paid for his tickets and that accused No. 2 would be meeting the Applicant outside the airport. He has specifically pointed to the narration and noting in the seizure panchnama with respect to a video call having been given by making a video call by accused No. 1 to accused No. 2 who was waiting outside the airport t....
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....e being any corroboration. The prosecution has not been able to establish any connection between the subject offence and the location/CDRs of the accused persons, where the applicant is alleged to be present at the time when the contraband was collected by Sayed Javed Hussain. Merely because the applicant had been having frequent calls with the co-accused, would not be sufficient to hold that applicant is guilty of the subject offence." 3.3 In the case of Jasbir Singh Vs. Narcotics Control Bureau [(2023) SCC OnLine Del 134] the Delhi High Court in paragraph Nos.63, 67 and 68 of its judgment while interpreting Section 67 of the NDPS Act vis-a-vis Sections 25 and 27 of the Indian Evidence Act, 1872 held as under :- "63. As statements recorded under Section 67 NDPS Act are inadmissible being hit by Section 25 IEA, the only way to make any part of such statements admissible, is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery of some fact not previously in the knowledge of the police officer. In the present case, none of the statements of the Applicant lead to any discover....
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.... at the trial with respect to the complicity of Applicant. He would submit that there is one antecedent of the Applicant in which he has been acquitted by the Sessions Court by order dated 28.06.2019. Said order is placed on record. He would submit that Applicant - accused No. 2 is a foreign national who is married to an Indian citizen (his wife) and has a child and is staying in India. Further Supreme Court in the case of Sarija Banu Alias Janarthani Alais Janani and Anr. v. State through Inspector of Police [(2004) 12 SCC 266] has held compliance of Section 42 is mandatory and it is a relevant fact required to be considered while considering a Bail Application. He would therefore persuade the Court to grant bail to the Applicant. 4. Ms. Palanpurwala, learned Advocate for Applicant in BA 5332/24 for Applicant - accused No. 1 would adopt the submissions and arguments made by Mr. Khan which for the sake of brevity are not reproduced herein. She would submit that considering the transgression of the statutory provisions as envisaged under the NDPS Act and NDPS Rules which have been prima facie argued and explained by Mr. Khan, the procedure adopted by the prosecution stands ....
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....as been directed to appear on behalf of the prosecution in BA No.5332/24. Ms. Bajoria is present in Court. She would persuade the Court to allow her to file affidavit in reply and also request her to grant sometime to get the affidavit vetted and approved by the Commissioner / Competent Authority to enable the prosecution to file the same. 9. Considering that Union of India was served on 04.03.2025, acknowledgment of which is placed before the Court by Ms. Palanpurwala, it was the duty of the Union of India to ensure that affidavit in reply was filed because in the case of the co- accused namely accused No. 2, the affidavit in reply has already been filed rather a detailed affidavit in reply has been filed. On perusal of the same, prima facie, I find that prosecution has covered the role of both the accused persons. Be that as it may, in view of the request made by Ms. Bajoria, learned Special PP, I am inclined to give her time to prepare the affidavit in reply, however only request is that the same shall be filed at the earliest considering the hearing of the present Bail Applications having been done by the Court and the matter is part-heard. If the said affidavit in rep....
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.... not render the evidence inadmissible. She would submit that Supreme Court has held that Section 52A of the NDPS Act which prescribes the procedure for disposal of seized narcotics does not invalidate the evidence nor does it automatically warrant bail for the accused. She would submit that it is held by Supreme Court that if substantial compliance of the procedure laid down under Section 52A is followed then any non-compliance thereof maybe fatal only in cases where such non-compliance goes to the root of the matter and not otherwise. In the present case she would submit that non-compliance of Section 52A neither vitiates the trial affecting conviction nor can it be a sole ground to seek bail. Hence she would submit that Applicant being apprehended with the alleged contraband prima facie proves his culpability and therefore is dis-entitled to bail and his Bail Application be rejected. 5. I have heard the submissions advanced by the learned Advocates at the Bar and perused the record of the case. At the outset what is crucial to be noted is that in the present case the prosecution has not complied with the statutory provisions envisaged under Chapter II pertaining to seizure and....
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.... stage of inventory procedure under Chapter III of the said Rules after obtaining Magistrate's permission and not prior thereto. This is because the inventory procedure is to be undertaken for drawing of samples in the presence of the Magistrate. In the present case it is an admitted position that immediately after the seizure was done at the airport and seizure panchanama was completed of the alleged contraband the contents of all 12 packets were mixed together by the prosecution team which prima faice is impermissible under the said Rules. When the alleged contraband is recovered from different packets, pouches or container it is imperative on the prosecution to draw a sample each from the recovered contraband packets, pouches or container. Mixing of contraband is impermissible. In my opinion this is not a procedural irregularity by the prosecution but it goes to the root of the matter and vitiates the prosecution case. 8. In this regard, reference is made to the following decisions of the Supreme Court and this Court :- (i) Union of India Vs. Bal Mukund and Ors. [(2009) 12 SCC 161] (ii) Shabbir Usman Shaikh Vs. The Union of India and Anr [BA No.731 of 20....
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....see that all the safeguards provided in statute are scrupulously followed. There is no reason as to why the empowered Officer / Investigating Officer should shirk or derelict from affording a real opportunity to the suspect and comply with the procedural safeguards contained in Section 50 of the NDPS Act to serve a dual purpose - to protect a person against false accusation and frivolous charges as also compliance of Sections 41, 42 and 43 of the NDPS Act. 11. The Supreme Court held that in every case the end result is important but the means to achieve it must remain above board. It held that remedy cannot be worse than the disease itself. The NDPS Act provides for a stringent punishment where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years as also makes stringent provisions for grant of bail, scrupulous compliance of the statutory provisions therefore must be insisted upon. Hence where the Act and Rules lay down procedure for taking samples the prosecution Officer cannot disregard the same and act own his own whims and fancies. 12. Hence the submission made by Ms. Bajoria that mixing of the seized contraband at....
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....nsidering violation of Section 42 and relevance thereof compliance of Section 42 is mandatory and it is relevant fact required to be considered while considering a Bail Application. In view of my above prima facie observations coupled with the prima facie observations detailed in the order dated 25.03.2025 and considering their long incarceration in prison over 2 years 3 months pending trial, both the Applicants have made out a case for grant of bail. 15. Hence, both Bail Applications are allowed subject to the following terms and conditions :- (i) Both Applicants are directed to be released on bail on furnishing P.R. Bond in the sum of Rs.50,000/- each with one or two sureties in the like amount; (ii) Before their actual release from jail, Applicants shall furnish their addresses where they propose to reside after their release from jail to the concerned Police Station and also to the trial Court; (iii) After their release from jail, Applicants shall report to the Investigating Officer as and when called for; (iv) Applicants shall attend the trial Court on first Tuesday of every month between 11.00 a.m. and 01.00 p.m. to mark their presence. ....