Full Judgment Text
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 19.04.2023
Judgment pronounced on: 18.05.2023
+ BAIL APPLN. 253/2023
KASHIF ..... Petitioner
Through: Mr Aditya Aggarwal, Mr Naveen
Panwar and Ms Kajol Garg, Advs.
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr Subhash Bansal, Senior Standing
Counsel for NCB with Mr Shashwat
Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T
JASMEET SINGH, (J)
1. This is an application seeking bail in case being Crime No.
VIII/19/DZU/2022, under section 8/22(c)/23(c)/29 of the Narcotic
Drugs and Psychotropic Substances Act,1985 (“NDPS”).
2. According to the prosecution, the brief facts of the case are:
A. An information was received by Junior Intelligence Officer (JIO) of
Narcotics Control Bureau (hereinafter NCB/ the Respondent), Sunil
Kumar, whereby it was stated that the parcel bearing AWB No.
7702909491 is lying at DHL Express Pvt. Ltd. Rama Road, Kirti
Nagar, New Delhi and was suspected to contain psychotropic
substance and in relation thereto the said officer informed the
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Superintendent, Sh. Amit Kumar Tiwary who directed another officer
Anoop Kumar (JIO) to take necessary action.
B. In pursuance of the above said directions, a team was constituted and
on the same day at around 3pm the team departed from NCB office
and reached DHL office at around 3:40pm. Thereafter, at DHL
Express office the team disclosed the information to the Supervisor,
Mr. Ankur Singh who joined the team as independent witness.
C. The said parcel was opened in which 11 lace rolls and 3 pieces of
clothes were found. After checking one lace roll it was found to
contain 120 strips of Tramadol tablets, 10 tablets in each strip. The
remaining lace rolls were examined and led to the discovery of total
13200 strips of Tramadol tablets. The panchnama was prepared on the
spot i.e., 24.02.2022. The contraband was seized, sealed and deposited
in the Malkhana on 24.02.2022. On 25.02.2022, the JIO, Anoop
Kumar submitted the seizure report.
D. On 24.02.2022, during the course of enquiry the above said officials
got the information from the owner of the DHL office that the said
parcel was booked through a firm OGS Groups by one of the accused,
Ganesh Chaudhary. He was apprehended on 25.02.2022 by the team
of the Respondent.
E. On the basis of disclosure statement of Ganesh Chaudhary, on
28.02.2022, second seizure was made at Terminal 3, IGI Airport, New
Delhi from the consignment number IZ98X1W70451682510 where
recovery of 15000 Zolpidem tablets was made. Further, on
02.03.2023, on the basis of Ganesh Chaudhary‟s disclosure statement,
a recovery of 19440 Tramadol tablets was made from 3 packages at
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Global India Express Pvt. Ltd., Mahipalpur, New Delhi.
F. Ganesh Chaudhary disclosed that the said parcel was sent by co-
accused Tamir Ali to be couriered to USA. On the basis of this
disclosure statement, the co-accused Tamir Ali was arrested.
G. Further on 06.03.2022, on initial enquiry, co-accused Tamir Ali
allegedly disclosed that his three other associates namely the present
Applicant i.e., Kashif and co-accused Rizwan and Zahid who were
also involved in sending NRx Tablets to USA, have gone to Himachal
on tour and also disclosed they are travelling in a Creta car and will
return to Lucknow from Himachal via Delhi in the night of
06.03.2022. Consequently, the Applicant was arrested near Jewar Toll
Plaza on 07.03.2022.
H. The Applicant was involved in sending the parcel to co-accused
Ganesh Chaudhary through bus conductor and also provided the
address of the consignee on WhatsApp to Ganesh Chaudhary.
3. The learned counsel for the Applicant has pleaded the following
submissions: -
A. The Applicant was arrested merely on the disclosure statement of co-
accused Tamir Ali who stated that the Applicant is also involved in
the business of sending NRx Tablets abroad. In light of Apex Court‟s
judgment in Tofan Singh v. State of Tamil Nadu (CRL Appeal No.
152/2013) decided on 29.10.2020, it is submitted that any statement
made by accused under section 67 of NDPS Act either retracted or not
is inadmissible in evidence except to the extent of any recovery
having been made pursuant to the alleged disclosure statement.
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B. The learned counsel for the Applicant has laid emphasis that there is
violation of Standing Order 1/88 in drawing of Samples. He states
neither the seizure memo was prepared on the spot nor sampling was
done on the spot which is a mandate upon the investigating agency as
per Clause 1.5 of the Standing Order 1/88.
C. He states there is a violation of direction of Apex Court regarding the
sampling procedure. The first courier which was recovered by the
NCB officials contained 11 lace rolls. The case of the prosecution is
that one lace roll was opened and it was found to contain 120 strips of
Tramadol tablets wrapped and concealed inside lace roll. Thereafter,
one of the strips was opened and found to contain 10 tablets which
were taken in a transparent zip-lock pouch and was mixed with all the
strips (120*11=1320) and put in a gunny bag. The same procedure has
been adopted by the NCB officials in relation to the other couriers
which were allegedly recovered later and hence, they have flouted the
procedure laid down by this Hon‟ble High Court in Basant Rai v
State , 2012 SCC OnLine Del 3319.
D. He states the procedure of sampling has to be done in accordance with
the directions given by Apex Court in Gaunter Edwin Kircher versus
State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) decided
on 16.03.1993 in which it was clarified that sample has to be taken
from each packet. While in the present set of facts, the NCB officials
have not taken the sample from each lace roll, rather sample was
taken from only one lace roll, thus, violating the sampling procedure.
E. The learned counsel for the Applicant submits that no reasonable
explanation for delay of application for sampling before magistrate is
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given by the respondent. The sample of 10 tablets was taken and was
put together with all the strips in a gunny bag. Later on, after around
51 days from the date of collection of last sample on 02.03.2022, on
22.04.2022, application for sampling under section 52A of NDPS Act
was presented before the Ld. Magistrate. It is trite law laid down in
Union of India v. Mohanlal (2016) 3 SCC 379 decided on
28.01.2016 that the application to the Magistrate for sampling has to
be moved immediately after seizure. In the present case, the
application under section 52A for drawing of sample was made after
inordinate delay of around 51 days.
F. He also states that the samples which were taken at the time of seizure
were presented before the Magistrate, for drawing the sample on
22.04.2022, were sent to FSL only on 18.08.2022, while Standing
Order 1/88 dated 15.03.1988 clearly mandates that the samples have
to be sent for FSL analysis within 72 hours from the date of seizure.
G. It is stated by Mr. Aggarwal, learned counsel for the applicant, that
the delay in moving an application under section 52A NDPS is fatal to
the case of the prosecution.
H. He relies on the Hon‟ble Supreme Court‟s judgment in Noor Aga v.
State of Punjab & Anr. in CRIMINAL APPEAL NO. 1034 OF 2008,
(2008) 16 SCC 417 to contend that guidelines in the Standing Order
should be substantially complied with.
I. The learned counsel also submits that no recovery of any kind was
effected from the Applicant, meaning thereby the entire story of
prosecution rests on the disclosure statement of the co-accused Tamir
Ali wherein he allegedly disclosed the name of the Applicant. He
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further states that the bus conductor/s was the carrier of alleged
contraband from the applicant to Ganesh Chaudhary but there is no
whisper as to the identity of the bus conductor/s or bus driver/s and
they have not been made a witness in the present case.
J. It is also submitted that there is no evidence of direct money
transaction between the Applicant and co-accused Ganesh Chaudhary
or between the Applicant or the customers overseas when it was
alleged that the Applicant was dealing in the business of sending the
parcels of NRx Tablets to the customers abroad through co-accused
Ganesh Chaudhary who allegedly used to courier the parcels from
Delhi to foreign countries. He also states that the investigation has
been completed and there is no whisper in the entire complaint of
„source‟ from where these tablets were procured by the Applicant and
co-accused persons.
4. Per contra Mr. Bansal, learned standing counsel for the Respondent
argues the following:
A. He states that there is no delay in filing application under Section 52A
of the NDPS Act. He states that the Act does not provide any statutory
time frame in moving an application for drawing of sample before the
Magistrate under Section 52A of the NDPS Act. Relying on the
judgment of Mohanlal (supra) , he states that the Hon‟ble Supreme
Court categorically declined from stipulating any exact time period
for the purposes of making an Application under section 52A before
the Magistrate seeking drawing of samples and correctness of
inventory.
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B. Even assuming, without admitting, that there was a delay in moving
application under Section 52A of the NDPS Act, he states that the
applicant is barred from raising this issue today. The application
under Section 52A of the NDPS Act for collection of samples was
filed on 22.04.2022 in the presence of the applicant and/or his
counsel. The applicant at that point in time raised no objection to
collection of sample and had he raised the objection, the respondent
would have furnished explanation that: (a) there was no delay and; (b)
the reasons for the alleged delay, if any. As of today, the application
under section 52A stood filed and allowed. Therefore, the applicant is
barred from raising the said issue today.
C. Mr. Bansal, learned standing counsel states that the delay has been
considered fatal in some of the cases as the samples were capable of
being tampered with. In the present case, the contraband comprised of
strips which were seized and the seizure memo dated 24.02.2022 duly
mentioned that the strips were in a sealed form and the godown
receipt also shows that there was no tampering with the contraband.
D. For the said reasons, he states that no prejudice has been caused to the
applicant for delay, if any, in filing an application under Section 52A
of the NDPS Act.
E. He contends that the rule of interpretation namely, casus omissus
provides that what has been omitted in the Statute or in other words,
basically a situation not supported under the Statute, cannot be
supplied by a court of law by construing the same in the name of
interpreting the Statute. If in the name of interpretation of a Statute,
the court of law supplies something which is not otherwise stated in
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the Statute by the Legislature, then it would amount to legislating by
the Court in the name of interpretation, hence is impermissible under
Constitution. Reliance in this regard is placed on the judgment of the
Hon‟ble Supreme Court in Chief Information Commissioner & Anr.
v. State of Manipur & Anr. (2011) 15 SCC 1 to contend that a
judgment of a court cannot be interpreted or taken as a provision of
statute. The relevant paras of the said judgment read as under:
“ 40. It is well known that when a procedure is laid down
statutorily and there is no challenge to the said statutory
procedure the Court should not, in the name of
interpretation, lay down a procedure which is contrary to
the express statutory provision. It is a time-honoured
principle as early as from the decision
in Taylor v. Taylor [(1875) 1 Ch D 426 (CA)] that where a
statute provides for something to be done in a particular
manner it can be done in that manner alone and all other
modes of performance are necessarily forbidden. This
principle has been followed by the Judicial Committee of the
Privy Council in Nazir Ahmad v. Emperor [(1935-36) 63 IA
372 : AIR 1936 PC 253 (2)] and also by this Court in Deep
Chand v. State of Rajasthan [AIR 1961 SC 1527 : (1961) 2
Cri LJ 705] , AIR at para 9 and also in State of
U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ
263 (2)] reported in AIR at para 8.
... ...
47. It is well known that the legislature does not waste
words or say anything in vain or for no purpose. Thus, a
construction which leads to redundancy of a portion of the
statute cannot be accepted in the absence of compelling
reasons. In the instant case there is no compelling reason to
accept the construction put forward by the respondents.”
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F. He has relied on the judgment of Arvind Yadav In JC Through His
Pairokar v. Govt Of NCT Delhi Through Standing Counsel in BAIL
APPLN. 1416/2021 (2021:DHC:1965) wherein a coordinate bench of
this court while considering the issue of non-compliance of Section
52A NDPS and whether petitioner is entitled to bail on this ground
alone, observed as under:
“13. By this petition, petitioner seeks bail on the ground of
noncompliance of Section 52A of the NDPS Act, however, in
view of the fact that the trial does not stand vitiated by
drawing the samples at the spot in the absence of a
Magistrate for being sent to FSL analysis for filing a
appropriate charge-sheet before the Special Court for
ascertaining the nature of contraband and whether the
sanctity of drawing the samples was vitiated for the non-
presence of the Magistrate would be an issue to be seen
during the course of trial, hence this Court finds no ground
to grant bail to the petitioner on this ground.”
G. Lastly, he states that these are all issues of defence which are being
raised by the applicant and can only be adjudicated after trial.
ANALYSIS
5. I have heard learned counsel for the parties.
6. At the time of arguments, the learned counsel for the Applicant has
restricted his arguments to violation of the Standing Order 1/88 and
delay in filing the application before the Magistrate for drawing the
sample under section 52A NDPS.
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7. Therefore, the question for determination before me is what is a
reasonable time to make an application to the Magistrate under section
52A NDPS and the effect of delay, if any?
8. Section 52A NDPS reads as under :
“ 52A. Disposal of seized narcotic drugs and psychotropic
substances :-
(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution, constraint
of proper storage space or any other relevant consideration, in
respect of any narcotic drugs, psychotropic substances,
controlled substances or conveyances, by notification in the
Official Gazette, specify such narcotic drugs, psychotropic
substances, controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class of
controlled substances or conveyances, which shall, as soon as
may be after their seizure, be disposed of by such officer and in
such manner as that Government may, from time to time,
determine after following the procedure hereinafter specified
(2) Where any narcotic drugs, psychotropic substances,
controlled substances or conveyances has been seized and
forwarded to the officer-in-charge of the nearest police station
or to the officer empowered under section 53, the officer referred
to in sub-section (1) shall prepare an inventory of such narcotic
drugs, psychotropic substances, controlled substances or
conveyances containing such details relating to their description,
quality, quantity, mode of packing, marks, numbers or such other
identifying particulars of the narcotic drugs, psychotropic
substances, controlled substances or conveyances or the packing
in which they are packed, country of origin and other particulars
as the officer referred to in sub-section (1) may consider relevant
to the identity of the narcotic drugs, psychotropic substances,
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controlled substances or conveyances in any proceedings under
this Act and make an application, to any Magistrate for the
purpose of
(a) certifying the correctress of the inventory so prepared;
or
(b) taking in the presence of such Magistrate, photographs
of such drugs, substances or conveyances and certifying
such photographs as true; or
(c) allowing to draw representative samples of such drugs
or substances, in the presence of such Magistrate and
certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973
(2 of 1974), every court trying an offence under this Act, shall
treat the inventory, the photographs of narcotic drugs,
psychotropic substances, controlled substances or conveyances
and any list of samples drawn under sub-section (2) and certified
by the Magistrate, as primary evidence in respect of such
offence.”
9. Clause 1.5 and 1.13 of Standing Order 1/88 is reproduced below :-
“ 1.5 Place and time of drawal of sample. – Samples from the
Narcotic Drugs and Psychotropic Substances seized, must be
drawn on the spot of recovery, in duplicate, in the presence of
search (Panch) witnesses and the person from whose possession
the drug is recovered, and mention to this effect should invariably
be made in the panchnama drawn on the spot.
... ...
1.13. Mode and Time limit for dispatch of sample to Laboratory :
The samples should be sent either by insured post or through
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special messenger duly authorized for the purpose. Despatch of
samples by registered post or ordinary mail should not be
resorted to. Samples must be dispatched to the Laboratory within
72 hours of seizure to avoid any legal objection.”
Ambiguity between Standing Order 1/88 and Section 52A NDPS
10. Although, the new notification published on 23 December 2022 repeals
Standing Orders 1/88 and 1/89, thereby clarifying and removing the
ambiguity by mandating drawl of sample to be carried out as per
Section 52A(2) NDPS, the same cannot be applied retrospectively.
11. The judgment of Noor Aga (supra), wherein the Supreme Court was
dealing with Standing Order 1/89, accords sanctity to the executive
instructions by observing as under:
“ 89. Guidelines issued should not only be substantially complied
with, but also in a case involving penal proceedings, vis-à-vis a
departmental proceeding, rigours of such guidelines may be
insisted upon. Another important factor which must be borne in
mind is as to whether such directions have been issued in terms of
the provisions of the statute or not. When directions are issued by
an authority having the legal sanction granted therefor, it becomes
obligatory on the part of the subordinate authorities to comply
therewith.
90. Recently, this Court in State of Kerala v. Kurian Abraham (P)
Ltd. [(2008) 3 SCC 582], following the earlier decision of this
Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC
1] held that statutory instructions are mandatory in nature.
91. The logical corollary of these discussions is that the guidelines
such as those present in the Standing Order cannot be blatantly
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flouted and substantial compliance therewith must be insisted
upon for so that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial compliance
with these guidelines by the investigating authority which leads to
drawing of an adverse inference against them to the effect that had
such evidence been produced, the same would have gone against
the prosecution.”
12. The punishments provided under the NDPS Act are punitive and
therefore, to balance the interests of an accused, it is imperative that a
strict compliance of the provisions of the law are made.
13. The Supreme Court in Mohanlal (supra) considering both, the
Standing Order 1/89 and Section 52A emphasized that even under
section 52A NDPS Act, application for drawing of samples and
certification must be made without any delay. The Court, whilst being
conscious of the obfuscation created in view of Standing Order 1/89
and Section 52A NDPS, observed as under:
“Seizure and Sampling
12. Section 52-A(1) of the NDPS Act, 1985 empowers the
Central Government to prescribe by a notification the
procedure to be followed for seizure, storage and disposal of
drugs and psychotropic substances. The Central Government
has in exercise of that power issued Standing Order No. 1 of
1989 which prescribes the procedure to be followed while
conducting seizure of the contraband. Two subsequent
standing orders one dated 10-5-2007 and the other dated 16-
1-2015 deal with disposal and destruction of seized
contraband and do not alter or add to the earlier standing
order that prescribes the procedure for conducting seizures.
Para 2.2 of Standing Order No. 1 of 1989 states that samples
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must be taken from the seized contraband on the spot at the
time of recovery itself. It reads:
“2.2. All the packages/containers shall be serially numbered
and kept in lots for sampling. Samples from the narcotic drugs
and psychotropic substances seized, shall be drawn on the spot
of recovery, in duplicate, in the presence of search witnesses
(panchas) and the person from whose possession the drug is
recovered, and a mention to this effect should invariably be
made in the panchnama drawn on the spot.”
... ...
18. Be that as it may, a conflict between the statutory provision
governing taking of samples and the Standing Order issued by
the Central Government is evident when the two are placed in
juxtaposition. There is no gainsaid that such a conflict shall
have to be resolved in favour of the statute on first principles
of interpretation but the continuance of the statutory
notification in its present form is bound to create confusion in
the minds of the authorities concerned instead of helping them
in the discharge of their duties. The Central Government
would, therefore, do well, to re-examine the matter and take
suitable steps in the above direction.
19. Mr Sinha, learned Amicus Curiae, argues that if an
amendment of the Act stipulating that the samples be taken at
the time of seizure is not possible, the least that ought to be
done is to make it obligatory for the officer conducting the
seizure to apply to the Magistrate for drawing of samples and
certification, etc. without any loss of time. The officer
conducting the seizure is also obliged to report the act of
seizure and the making of the application to the superior
officer in writing so that there is a certain amount of
accountability in the entire exercise, which as at present gets
neglected for a variety of reasons. There is in our opinion no
manner of doubt that the seizure of the contraband must be
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followed by an application for drawing of samples and
certification as contemplated under the Act. There is equally
no doubt that the process of making any such application and
resultant sampling and certification cannot be left to the
whims of the officers concerned. The scheme of the Act in
general and Section 52A in particular, does not brook any
delay in the matter of making of an application or the
drawing of samples and certification. While we see no room
for prescribing or reading a time-frame into the provision,
we are of the view that an application for sampling and
certification ought to be made without undue delay and the
Magistrate on receipt of any such application will be
expected to attend to the application and do the needful,
within a reasonable period and without any undue delay or
procrastination as is mandated by sub-section (3) of Section
52A (supra). We hope and trust that the High Courts will keep
a close watch on the performance of the Magistrates in this
regard and through the Magistrates on the agencies that are
dealing with the menace of drugs which has taken alarming
dimensions in this country partly because of the ineffective and
lackadaisical enforcement of the laws and procedures and
cavalier manner in which the agencies and at times
Magistracy in this country addresses a problem of such
serious dimensions.
... ...
31. To sum up we direct as under:
31.1. No sooner the seizure of any narcotic drugs and
psychotropic and controlled substances and conveyances is
effected, the same shall be forwarded to the officer in charge
of the nearest police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall then
approach the Magistrate with an application under Section
52-A(2) of the Act, which shall be allowed by the Magistrate
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as soon as may be required under sub-section (3) of Section
52-A, as discussed by us in the body of this judgment under the
heading “seizure and sampling”. The sampling shall be done
under the supervision of the Magistrate as discussed in Paras
15 to 19 of this order.” (emphasis supplied)
14. Pertinently, a coordinate bench of this court granted bail due to non-
compliance of procedure under section 52A and Standing Order 1/89 in
Amani Fidel Chris v. Narcotics Control Bureau 2020 SCC OnLine
Del 2080 by observing as under:
“ 15. In view of the stringent provisions of the NDPS Act, the
issue to be considered is whether the procedure specified
under the Standing Orders can be flouted.
... ...
32. In the opinion of this court, the procedure adopted by the
respondent in the present case for drawing samples neither
conforms to the procedure prescribed under Section 52A of
NDPS Act nor under the Standing Orders. At the cost of
repetition, the respondent neither filed any application before
the Magistrate for drawing the samples under his supervision
nor followed the procedure of drawing a representative sample
outlined in paras 2.4 or 2.5 read with 2.8 of the Standing
Order 1/89.”
15. The aforesaid discussion makes it clear that Section 52A NDPS does
not give a time frame within which application has to be made for
collection of sample to the magistrate. The time frame is provided in
Standing Order 1/88 and that too, only in the context of sending the
sample to FSL.
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16. Guidelines prescribed in the Standing Orders cannot be flouted and
their substantial compliance must be insisted upon as observed in Noor
Aga (supra). This court has already held Standing Order 1/88 to be
mandatory in the judgment of Laxman Thakur v. State in BAIL
APPLN. 3233/2022 (2022/DHC/005591).
Resolving the Ambiguity
17. If the argument of the respondent is accepted that Section 52A of the
NDPS Act does not contemplate a timeframe within which the
application is to be moved, the same would be contrary to the
legislative intent. It is settled principle of law that where a statute does
not provide a particular time limit, the same can be inferred from the
guidelines and/or has to be within reasonable time.
18. In Mohanlal (supra) , the Hon‟ble Supreme Court in para 19 has opined
that “...The scheme of the Act in general and Section 52A in
particular, does not brook any delay in the matter of making of an
application or the drawing of samples and certification. While we see
no room for prescribing or reading a time-frame into the provision,
we are of the view that an application for sampling and certification
ought to be made without undue delay... ”. What is reasonable has been
left open by the Apex Court in the said judgment.
19. It cannot be the intent of the legislature that since no time limit is
mentioned in the statute, the respondent authorities can take their own
sweet time in moving an application under section 52A NDPS. Rather,
the said application should be moved at the earliest to prevent the
apprehension of tampering with the samples as the seizure, quantity
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and quality of contraband is the most crucial evidence in NDPS cases
and drawing of sample and certification in the presence of magistrate is
of utmost importance.
20. Thus, a harmonious and combined reading of Standing Order 1/88 and
Section 52A NDPS construes that a reasonable time must be read into
section 52A(2) for making an application for drawing the sample and
certification before the Magistrate.
Effect of Delay
21. Respondents‟ have placed reliance on the judgment of Arvind Yadav
(supra), passed by a coordinate bench of this court, which held that
violation of section 52A due to absence of Magistrate at the time of
drawing the sample did not vitiate the trial and hence, the accused is
not entitled to bail.
22. Though the court in Arvind Yadav (supra) held that the trial is not
vitiated in the facts and circumstances therein, but the pertinent
question arises whether it gives a reasonable apprehension that the
seized sample was not properly preserved in custody of the prosecuting
agency and/or tampered with?
23. The reason for strict time frame and collection of sample has been
elucidated by a coordinate bench of this court in the judgment of Rishi
Dev @ Onkar Singh v. State (2008:DHC:1513) in CRL.A. No.
757/2000 decided on 01.05.2008 wherein it was observed as under:
“8.…The above passage shows that there is a time limit of 72
hours stipulated by the Narcotics Control Bureau for a seized
sample to be deposited with the Chemical Examiner for
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testing. This rule is salutary because any attempt at tampering
with the sample recovered from the accused can have fatal
consequences to the case of the prosecution. Strict compliance
has to be insisted upon in such an event.
… ...
19. This Court is unable to agree with the approach adopted
by the trial court, especially its observations highlighted
above. The record of the case should contain entry in writing
about the sample being sent for testing within the time
specified by the Narcotic Control Bureau. A strict compliance
of this requirement has to be insisted upon. The reason is
this. The sample that is kept in a police malkhana, under the
seals of the police officers themselves, is still definitely under
the control of those police officers. There is every possibility
that the samples could be tampered and again re-sealed by
the very same officers by again affixing their seals. It is to
prevent this from happening that earlier the sample is sent for
testing to the CFSL the better.” (emphasis supplied)
24. Hence, I am of the view that non-compliance of section 52A within a
reasonable time gives rise to the apprehension that sample could have
been tampered with and in case of a wrongly 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
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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 cannot be the intention of the legislature that an
application for sample collection can be moved at the whims and
fancies of the prosecuting agency. Therefore, taking cue from the
Standing Order 1/88, it is desirable that the application under 52A
should be made within 72 hours or near about the said time frame.
29. In the present case, the application for drawing of sample and
certification of seizure memo under section 52A NDPS was filed on
22.04.2022 i.e., after 51 days from the period of last seizure on
02.03.2022.
30. A period of 51 days, by no stretch of imagination, can be called a
reasonable period for filing an application under section 52A NDPS for
drawing the sample. It cannot be that the contraband lying in the
custody of the Narcotics Department for 51 days, in their power and
possession, is immune from tampering and mischief. Furthermore, no
reasons have been furnished by the Respondent for the delay of 51 days
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for moving an application under section 52A NDPS.
31. In view of the above discussion, I hold that violation of Section 52A
vitiates the sample collection procedure and the benefit of the same
must accrue to the Applicant.
32. The application by the respondent under section 52A was filed after a
delay of 51 days. At that time, the applicant did not object. However,
the same being a legal objection can be raised at any stage.
33. The applicant has been in custody since 07.03.2022 and more than a
year has passed since then. No further custodial interrogation of the
Applicant is required. No recovery was made from the Applicant or at
his instance. Therefore, the embargo of Section 37 NDPS is not
applicable on the Applicant.
34. The triple test i.e., a) flight risk; b) tampering with evidence and c)
influencing the witnesses can be taken care of by imposing stringent
bail conditions.
35. For the aforesaid reasons, the application is allowed and the applicant is
granted bail on the following terms and conditions:
i. The Applicant shall furnish a personal bond and a surety bond
in the sum of Rs. 25,000/- each, to the satisfaction of the Trial
Court;
ii. The Applicant shall appear before the Court as and when the
matter is taken up for hearing;
iii. The Applicant shall provide his mobile number to the
Investigating Officer (IO) concerned, which shall be kept in
working condition at all times. The Applicant shall not switch
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off, or change the same without prior intimation to the IO
concerned, during the period of bail;
iv. The Applicant shall join investigation as and when called by the
I.O. concerned;
v. In case the Applicant changes his address, he will inform the
I.O. concerned and this Court also;
vi. The Applicant shall not leave the country during the bail period
and surrender his passport, if any, at the time of release before
the Trial Court;
vii. The Applicant shall not indulge in any criminal activity during
the bail period;
viii. The Applicant shall not communicate with or come into contact
with any of the prosecution witnesses or tamper with the
evidence of the case.
36. The observations made hereinabove are only for the purposes of the
deciding the present bail application. They shall not have any bearing
in the deciding the merits of the case.
37. The application is allowed and disposed of.
38. The documents handed over in court are taken on record.
JASMEET SINGH, J
MAY 18, 2023 / jv
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