Full Judgment Text
$~72
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14.05.2024
+ CRL.M.C. 3866/2024
NARCOTIC CONTROL BUREAU (DZU) ..... Petitioner
Through: Mr.Utsav Singh Bains, SPP
(through VC)
versus
AQYAR KHAN SHINWARI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
CRL.M.A. 14787/2024 (Exemption)
1. Allowed, subject to all just exceptions.
CRL.M.C. 3866/2024
2. This petition has been filed under Section 439(2) read with
Section 482 of the Code of Criminal Procedure, 1973 (in short,
‘Cr.P.C.’), challenging the Order dated 29.01.2024 (hereinafter
referred to as ‘Impugned Order’) passed by the learned Additional
Sessions Judge (Special Judge – NDPS), New Delhi District, Patiala
House Courts, New Delhi (hereinafter referred to as the ‘Special
Judge’) in SC No.20/2020 titled NCB v. Aqyar Khan (Complaint Case
no.VIII/30/DZU/2019) directing release of the respondent on Bail in
the abovementioned case.
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3. The abovementioned Complaint Case has been registered on the
complaint of the petitioner alleging Offence under Sections 8(c),
21(c), 23(c), and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short, ‘NDPS Act’), inter alia , against the
respondent.
4. The learned Special Judge by the Impugned Order has directed
the respondent herein to be released on Bail, observing that the
respondent has been able to make out a case for release on Bail even
after considering the rigours of Section 37 of the NDPS Act, inasmuch
as, the petitioner had failed to comply with the mandatory provisions
of Section 52A of the NDPS Act. The learned Special Judge has also
taken note of the fact that the respondent has been in custody since
25.07.2019, that is, for nearly 4 years and 6 months.
5. The learned counsel for the petitioner submits that, in the
present case, contraband of a commercial quantity was seized from the
respondent. The same is proved through the seizure memo. Samples
had been drawn at the site. He submits that it has been proved through
the FSL report that the seized samples were Narcotics/Psychotropic
Substances. He submits that neither the non-compliance of Section
52A of the NDPS Act nor the long period of incarceration can be a
ground for releasing the respondent on bail, especially in view of the
stringent provisions contained in Section 37 of the NDPS Act. He
submits that the contraband is still available and can be produced
before the learned Trial Court as and when asked for. He submits that
Section 52A of the NDPS Act merely deals with the disposal of the
contraband and does not have any effect on the sampling procedure or
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on the case of the prosecution.
6. I have considered the submissions made by the learned counsel
for the petitioner and perused the contents of the complaint as also of
the Impugned Order.
7. This Court in Gurpreet Singh v. State (NCT of Delhi) , 2024
SCC OnLine Del 696, placing reliance on the judgments of the
Supreme Court in Mohd. Muslim alias Hussain v. State (NCT of
Delhi), 2023 SCC Online SC 352; Rabi Prakash v. State of Odisha,
2023 SCC OnLine SC 1109; Badsha SK. v. The State of West
Bengal (Order dated 13.09.2023 passed in Special Leave Petition
(Crl.) 9715/2023); Dheeraj Kumar Shukla v. State of U.P. , 2023
SCC OnLine SC 918; Man Mandal & Anr. v. The State of West
Bengal 2023 SCC OnLine SC 1868; Biswajit Mondal @ Biswajit
Mandal v. The State of West Bengal (Order dated 14.02.2023 in SLP
(Crl.) bearing no.11731/2022; and Dheeraj Kumar Shukla v. State of
U.P., 2023 SCC OnLine SC 918; and of this Court in Suraj v . State
(NCT of Delhi) , 2023 SCC OnLine Del 5323 , held that delay in
conclusion of the trial, not attributable to the accused, would be an
important circumstance for releasing the accused on Bail on ground of
protection of the liberty of the accused guaranteed under Article 21 of
the Constitution of India.
8. As far as non-compliance with Section 52A of the NDPS Act is
concerned, in Yusuf @ Asif v. State , (2023) SCC OnLine SC 1328,
the Supreme Court emphasised on the mandatory compliance with
Section 52A of the NDPS Act, by observing as under:
“ 12. A simple reading of the aforesaid
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provisions, as also stated earlier, reveals that
when any contraband/narcotic substance is
seized and forwarded to the police or to the
officer so mentioned under Section 53, the
officer so referred to in sub-section (1) shall
prepare its inventory with details and the
description of the seized substance like quality,
quantity, mode of packing, numbering and
identifying marks and then make an
application to any Magistrate for the purposes
of certifying its correctness and for allowing to
draw representative samples of such
substances in the presence of the Magistrate
and to certify the correctness of the list of
samples so drawn.
13. Notwithstanding the defence set up from
the side of the respondent in the instant case,
no evidence has been brought on record to the
effect that the procedure prescribed under
subsections (2), (3) and (4) of Section 52A of
the NDPS Act was followed while making the
seizure and drawing sample such as preparing
the inventory and getting it certified by the
Magistrate. No evidence has also been
brought on record that the samples were
drawn in the presence of the Magistrate and
the list of the samples so drawn were certified
by the Magistrate. The mere fact that the
samples were drawn in the presence of a
gazetted officer is not sufficient compliance of
the mandate of sub-section (2) of Section 52A
of the NDPS Act.
14. It is an admitted position on record that
the samples from the seized substance were
drawn by the police in the presence of the
gazetted officer and not in the presence of the
Magistrate. There is no material on record to
prove that the Magistrate had certified the
inventory of the substance seized or of the list
of samples so drawn.
15. In Mohanlal's case, the apex court while
dealing with Section 52A of the NDPS Act
clearly laid down that it is manifest from the
said provision that upon seizure of the
contraband, it has to be forwarded either to
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the officer-in-charge of the nearest police
station or to the officer empowered under
Section 53 who is obliged to prepare an
inventory of the seized contraband and then to
make an application to the Magistrate for the
purposes of getting its correctness certified. It
has been further laid down that the samples
drawn in the presence of the Magistrate and
the list thereof on being certified alone would
constitute primary evidence for the purposes of
the trial.
16. In the absence of any material on record to
establish that the samples of the seized
contraband were drawn in the presence of the
Magistrate and that the inventory of the seized
contraband was duly certified by the
Magistrate, it is apparent that the said seized
contraband and the samples drawn therefrom
would not be a valid piece of primary evidence
in the trial. Once there is no primary evidence
available, the trial as a whole stands vitiated.”
(Emphasis supplied)
9. In Bothilal v. Narcotics Control Bureau , 2023 SCC OnLine SC
498, the Supreme Court reiterated the same as under:-
“ 16. In paragraphs 15 to 17 of the Mohanlal
case, it was held thus:
“15. It is manifest from Section 52-
A(2)include (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
stipulated in the said provision and
make an application to the Magistrate
for purposes of (a) certifying the
correctness of the inventory, (b)
certifying photographs of such drugs or
substances taken before the Magistrate
as true, and (c) to draw representative
samples in the presence of the
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Magistrate and certifying the
correctness of the list of samples so
drawn.
16. Sub-section (3) of Section 52-A
requires that the Magistrate shall as
soon as may be allow the application.
This implies that no sooner the seizure
is effected and the contraband
forwarded to the officer-in-charge of the
police station or the officer empowered,
the officer concerned is in law duty-
bound to approach the Magistrate for
the purposes mentioned above including
grant of permission to draw
representative samples in his presence,
which samples will then be enlisted and
the correctness of the list of samples so
drawn certified by the Magistrate. In
other words, the process of drawing of
samples has to be in the presence and
under the supervision of the Magistrate
and the entire exercise has to be
certified by him to be correct.
17. The question of drawing of samples
at the time of seizure which, more often
than not, takes place in the absence of
the Magistrate does not in the above
scheme of things arise. This is so
especially when according to Section
52-A(4) of the Act, samples drawn and
certified by the Magistrate in
compliance with sub-sections (2) and
(3) of Section 52-A above constitute
primary evidence for the purpose of the
trial. Suffice it to say that there is no
provision in the Act that mandates
taking of samples at the time of seizure.
That is perhaps why none of the States
claim to be taking samples at the time of
seizure.”
(emphasis added)
17. Thus, the act of PW-2 of drawing
samples from all the packets at the time of
seizure is not in conformity with what is held
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by this Court in the case of Mohanlal. This
creates a serious doubt about the
prosecution's case that the substance
recovered was contraband.”
10. In Simranjit Singh v. State of Punjab , (2023) SCC OnLine SC
906, again, placing reliance on the earlier judgment of the Supreme
Court in Union of India v. Mohanlal, (2016) 3 SCC 379, the Supreme
Court reiterated that where the samples were not drawn in conformity
with Section 52A of the NDPS Act, it creates a serious doubt on the
prosecution’s case about the substance recovered to be a contraband.
11. As regards the submission of the learned counsel for the
petitioner that the seized substance is still available with the petitioner
and, therefore, non-compliance with Section 52A of the NDPS Act
would not be relevant, I again do not find any merit in the same.
Whether the seized substance has been kept in an intact/untampered
position and if it is, in fact, a contraband, and the effect thereof, will
need to be proved in trial. However, for purposes of releasing the
respondent on Bail, non-compliance with the provisions under Section
52A of the NDPS Act shall be sufficient to hold that the respondent
has satisfied the test of Section 37 of the NDPS Act.
12. In my view, therefore, no fault can be found in the Impugned
Order directing release of the respondent on Bail. The petition is,
accordingly, dismissed. There shall be no order as to costs.
NAVIN CHAWLA, J
MAY 14, 2024 /ns/AS
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