Gurpreet Singh vs. State Of Nct Of Delhi

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10.01.2024

Pronounced on: 05.02.2024



+ BAIL APPLN. 857/2023
GURPREET SINGH
..... Petitioner
Through: Mr.Adarsh Priyadarshi &
Mr.Sachin Tanwar, Advs.

versus


STATE OF NCT OF DELHI
..... Respondent
Through: Mr.Aman Usman, APP.
SI Pramod Kumar, PS
Sagarpur.





CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. This application has been filed by the applicant under Section
439 of the Code of Criminal Procedure, 1973 (in short, ‘CrPC’)
seeking release on bail in SC No. 420/2022 pending adjudication
before the Court of the learned Special Judge, NDPS Act, Patiala
House Courts, New Delhi arising out of FIR No.0285/2021 registered
with Police Station: Sagarpur, South-West District, Delhi, under
Sections 20/61/85 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short, NDPS Act’).
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2. In short, it is the case of the prosecution that on 08.06.2021, the
applicant was found to be driving a car in a suspicious manner. He
was stopped, and on an inspection of the car, two plastic bags were
recovered. In one bag there were 7 packets of dark brown colour,
while in the other, there were 6 of such dark brown colour packets,
making it a total of 13 packets. It is further alleged that on the basis of
a visual inspection and from smelling the packets, it could be made
out that these packets were containing Ganja (cannabis). Later, the
contents of these 13 dark brown packets were taken out from these
packets and were mixed together. The total weight of the contraband
was 26.790 kgs. The seized Ganja (cannabis) was sealed and
deposited in the Malkhana of Police Station, Sagarpur.
3. It is further alleged that, in the Police custody, the applicant
disclosed that he along with another person, namely Akarm, used to
transport cannabis/Ganja from Bawanipatna, (Naxalite Belt), Odisha
to Delhi and other places at the direction of one Ajay Lamba. The
prosecution alleges that on arrest, Ajay Lamba disclosed that he used
to take Ganja from a person, namely Pramod Kumar Tandi @ Tunda,
who does agriculture/business of Cannabis in Odisha. He further
disclosed that he engaged the applicant herein and Akarm for
transporting and supplying Cannabis/Ganja from Pramod Kumar
Tandi @ Tunda. The CDRs of the co-accused, that is the applicant,
Ajay Lamba, Akarm, and Pramod Kumar Tandi @ Tunda, were
analysed, which showed that they were talking to each other from a
long time. It is alleged that the applicant herein also disclosed that his
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step-father-Suraj also used to supply Cannabis/Ganja at various places
in Delhi. The prosecution also relied upon certain banking transactions
between the co-accused. It is alleged that as Suraj, Akarm, and
Pramod Kumar Tandi @ Tunda are absconding, they have been
declared as Proclaimed Offenders.
4. Charge-sheet was filed against the applicant and the co-accused
Ajay Lamba, on 21.10.2021, under Sections 20/29 of the NDPS Act.
A Supplementary Charge-Sheet, placing the FSL report, has also been
filed and charges have been framed. Examination-in-Chief of two
witnesses is being recorded.
Submissions of the learned Counsel for the Applicant
5. The learned counsel for the applicant submits that though the
applicant has been in custody since 08.06.2021, and charge-sheet was
filed on 21.10.2021, only 2 out of the 22 witnesses cited by the
prosecution have been examined by the prosecution, and that too only
partially. Placing reliance on the judgment of the Supreme Court in
Mohd. Muslim v. State (NCT of Delhi) , 2023 SCC OnLine SC 352;
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; Rabi Prakash v.
State of Odisha , 2023 SCC OnLine SC 1109; Man Mandal & Anr. v.
The State of West Bengal (Special Leave Petition (Crl.) 8658/2023
decided on 14.09.2023); and of this Court in Suraj v. State (NCT of
Delhi), 2023 SCC OnLine Del 5323, he submits that only on the
ground of delay in the trial, the applicant is entitled to be released on
bail.
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6. He further submits that even otherwise, the prosecution had
mixed the contents of the 13 packets allegedly recovered from the car
of the applicant into one homogenous whole. He submits that the same
is in violation of the Standing Order No.1/88 dated 15.03.1988 issued
by the Narcotics Control Bureau and the Standing Order No. 1/89
dated 13.06.1989, issued by the Department of Revenue, Ministry of
Finance, Government of India. Placing reliance on the judgment of the
Supreme Court in Gaunter Edwin Kircher v. State of Goa,
Secretariat Panaji, Goa , (1993) 3 SCC 145; and of this court in
Amani Fidel Chris v. The Narcotics Control Bureau , 2020 SCC
OnLine Del 2080; Basant Rai v. State , 2012 SCC OnLine Del 3319;
and Gopal Das v. NCB, 2021 SCC OnLine Del 329, he submits that
the sampling procedure not being in accordance with the above-
mentioned Standing Orders, the applicant has met the strict standards
for grant of bail as prescribed in Section 37 of the NDPS Act.
7. The learned counsel for the applicant further submits that in the
present case, upon seizure, an application under Section 52A of the
NDPS Act for the drawing of samples was made before the learned
Magistrate only on 30.07.2021, and the samples were drawn only on
04.09.2021, that is after a period of almost three months from the date
of the alleged seizure. Placing reliance on the judgment of this Court
in Kashif v. Narcotics Control Bureau , 2023 SCC OnLine Del 2881;
and Tamir Ali v. Narcotics Control Bureau, 2023 SCC OnLine Del
3015, he submits that this delay also entitles the applicant to be
released on bail.

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Submissions of the learned APP


8. On the other hand, the learned APP submits that Section 37 of
the NDPS Act is an exception to the general principle of law, and
where the offence is in relation to a commercial quantity, the accused
can be released on bail only if the Court is satisfied that there are
reasonable grounds for believing that he is not guilty of such offence
and he is not likely to commit any offence while being released on
bail. He submits that the offence under the NDPS Act are very serious
and affect the entire society including lives of a number of persons.
Stringent provisions have therefore, been made for releasing the
accused on bail. He submits that Section 37 of the NDPS Act cannot
be given a liberal interpretation on the justification that it affects the
personal liberty of a citizen who is yet to be tried. In support he places
reliance on the judgments of the Supreme Court in Narcotics Control
Bureau v. Kishan Lal , (1991) 1 SCC 705; Intelligence Officer,
Narcotics C. Bureau v. Sambhu Sonkar, (2001) 2 SCC 562; Bipin
Shantilal Panchal v. State of Gujarat , (2001) 3 SCC 1 ; Union of
India v. Rattan Mallik , (2009) 2 SCC 624 ; and Babua v. State of
Orissa, (2001) 2 SCC 566 .
9. He further submits that, in any case, this Court must take into
account the reasons for the delay in completion of the trial. It could
also be for reasons attributed to the Court itself. He submits that in the
present case, Covid-19 also intervened, and with there being restricted
functioning of the Courts due to the same, some delay has been caused
in the conclusion of the trial. He submits that therefore, delay in
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completion of the trial cannot be a reason to release the applicant on
bail. In support, he places reliance on the judgments of this Court in
Anil Kumar Gandhi v. N.C.B., 1991 SCC OnLine Del 344; Gurbux
Bhiryani v. J.K. Handa, 1991 SCC OnLine Del 421, and of the High
Court of Kerala in Jaseer S.M. v. State of Kerala & Anr. , in Bail
Appl. No.7238/2023 decided on 08.01.2024.
10. He submits that the purpose of Section 52A of the NDPS Act is
for the disposal of the case property after making inventory and
keeping the samples of seized contraband. It is for the purpose of
keeping representative samples for being exhibited during the course
of the trial as primary evidence. He submits that the Standing Orders
No.1/88 and 1/89 are merely advisory in nature and not mandatory.
Their non–compliance is neither fatal to the case of the prosecution
nor does it entitle the accused to be released on bail. The effect of such
non-compliance can only be determined at the conclusion of the trial,
where the accused would have to show the prejudice caused due to
such non-compliance. In support, he places reliance on the judgment
of this Court in Masibur Khan v. State (Govt. Of NCT of Delhi),
2023 SCC OnLine Del 3326 ; Shailender v. State of NCT of Delhi,
2022 SCC OnLine Del 4896; and Saddad Alam v. State (Govt. Of
NCT Delhi), Neutral Citation No. 2023:DHC:7494, and of the High
Court of Bombay in Mukesh Rajaram Choudhari v. The State of
Maharashtra , Neutral Citation No.2023:BHC-AS:28549.
11. He submits that, in the present case, there was a substantial
compliance with the said Standing Orders and therefore, the accused
be not released on bail.
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Analysis
12. I have considered the submissions made by the learned counsels
for the parties.
13. There can be no doubt on the proposition that for being released
on bail, the accused/appellant must satisfy the conditions as stipulated
in Section 37 of the NDPS Act. There can also be no dispute that
keeping in view the nature of offence, there is no occasion for
applying the more liberal principles for grant of bail to the accused
under the NDPS Act where the offence involves commercial quantity.
Error in procedure of sampling:
14. In the present case, however, as is evident from the case of the
prosecution itself, 13 packets allegedly containing Cannabis/Ganja
were recovered from the car driven by the applicant. The contents of
these 13 packets was mixed together to form a uniform whole before
drawing the samples. Recently, this Court in its judgment in Sandeep
@ Chiku v. State (NCT of Delhi) , Neutral Citation
No.2024:DHC:528, in similar circumstances, on analysing the prior
judgments on the issue, has held as under:-
“18. A reading of the Standing Order
No.1/89 would show that all
packages/containers are to be serially
numbered and kept in lots for sampling. In
cases where more than one package/container
is seized, it is advisable to draw one sample (in
duplicate) from each of such
packets/containers. Clause 2.5 of the Standing
Order, however, states that where the
packages/containers seized together are
identical in size and weight, bearing identical
marking, and the content of each packets gives
identical result on colour testing by Drug
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Identification Kit, conclusively indicating that
the packages/containers are identical in all
respects, the packages/containers may be
bunched together in lots of 10
packages/containers (in case of ganja and
hashish lots of 40 packages/containers) and
for each of such lots of packages/containers,
one sample (in duplicate) may be drawn.
Clause 2.8 states that, while drawing the
samples from a particular lot, it must be
ensured that representative samples in equal
quantity are taken from a package/container of
that lot and mixed together to make a
composite whole from which the samples are
drawn for that lot. Therefore, the identity of
the packages/containers including their
contents has to be preserved while drawing the
samples. They cannot all be mixed together to
thereafter draw samples. The Standing Order
only allows that where the lots of such
packages/containers are prepared, samples in
equal quantity are taken from each
packages/containers of that lot, mixed
together, and thereafter sample drawn from
such composite whole of samples.

19. In the present case, the above procedure
has been completely violated and not adhered
to by the prosecution. As noted hereinabove,
the prosecution emptied all the packages that
were recovered from the trolley bag of the
accused persons into one composite whole and
thereafter, samples from such composite whole
were drawn before the learned Metropolitan
Magistrate. Similar exercise was done for the
packages recovered from the backpacks
carried by the accused. This is clearly is not in
compliance with the Standing Orders.

xxxx

27. The High Court of Bombay in Mukesh
Rajaram Choudhari (supra) has held that
non-compliance with the procedure under
Section 52A of the NDPS Act cannot mean that
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the accused automatically becomes entitled to
bail as a matter of right. In my view, however,
the non-compliance with the provisions of
Section 52A of the NDPS Act would need to be
explained by the prosecution at the trial and
till then, the cardinal rule that the accused is
presumed to be not guilty shall get attracted
for holding that “there are reasonable
grounds for believing that he is not guilty of
such offence” and that the accused meets the
pre-condition for release on bail as prescribed
in Section 37 of the Act. It is settled law that
when a thing is prescribed to be done in a
particular manner, it must be done in that
manner or not at all. As the manner of
sampling has been prescribed in the above two
Standing Orders, non-compliance thereof
would give rise to reasonable grounds for
believing that the accused is not guilty of the
offence alleged against him based on the
alleged seizure and sampling.”

15. In the present case, therefore, as there is a non-compliance with
the procedure prescribed for sampling, the applicant is entitled to be
released on bail.
Delay in trial:

16. In addition to the above, only 2 (two) out of 22 witnesses have
been examined by the prosecution, and that too partially, though more
than three and a half years have passed since the arrest of the
applicant. It may be true that the reason for the delay in the conclusion
of the trial may be for various factors, may be not even attributable to
the prosecution, like Covid 19 pandemic and restricted function of the
Courts, however, as long as they are not attributable to the
applicant/accused, in my view, the applicant would be entitled to
protection of his liberty under Article 21 of the Constitution of India.
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Delay in trial would, therefore, be one of the consideration that would
weigh with the Court while considering as application filed by the
accused for being released on bail.
17. In Mohd. Muslim @ Hussain (Supra), the Supreme Court
considering the application filed by the accused therein for being
released on bail, observed as under:-
“12. This court has to, therefore, consider
the appellant's claim for bail, within the
framework of the NDPS Act, especially Section
37. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union
of India, this court made certain crucial
observations, which have a bearing on the
present case while dealing with denial of bail
to those accused of offences under the NDPS
Act:
“On account of the strict language of the
said provision very few persons accused of
certain offences under the Act could secure
bail. Now to refuse bail on the one hand and to
delay trial of cases on the other is clearly
unfair and unreasonable and contrary to the
spirit of Section 36(1) of the Act, Section 309
of the Code and Articles 14, 19 and 21 of
the Constitution. We are conscious of the
statutory provision finding place in Section 37
of the Act prescribing the conditions which
have to be satisfied before a person accused of
an offence under the Act can be released.
Indeed we have adverted to this section in the
earlier part of the judgment. We have also kept
in mind the interpretation placed on a similar
provision in Section 20 of the TADA Act by the
Constitution Bench in Kartar Singh v. State of
Punjab [(1994) 3 SCC 569]. Despite this
provision, we have directed as above mainly at
the call of Article 21 as the right to speedy
trial may even require in some cases quashing
of a criminal proceeding altogether, as held by
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a Constitution Bench of this Court in A.R.
Antulay v. R.S. Nayak [(1992) 1 SCC 225],
release on bail, which can be taken to be
embedded in the right of speedy trial, may, in
some cases be the demand of Article 21. As we
have not felt inclined to accept the extreme
submission of quashing the proceedings and
setting free the accused whose trials have been
delayed beyond reasonable time for reasons
already alluded to, we have felt that
deprivation of the personal liberty without
ensuring speedy trial would also not be in
consonance with the right guaranteed by
Article 21. Of course, some amount of
deprivation of personal liberty cannot be
avoided in such cases; but if the period of
deprivation pending trial becomes unduly
long, the fairness assured by Article 21 would
receive a jolt. It is because of this that we have
felt that after the accused persons have
suffered imprisonment which is half of the
maximum punishment provided for the offence,
any further deprivation of personal liberty
would be violative of the fundamental right
visualised by Article 21, which has to be
telescoped with the right guaranteed by Article
14 which also promises justness, fairness and
reasonableness in procedural matters.”
13. When provisions of law curtail the
right of an accused to secure bail, and
correspondingly fetter judicial discretion (like
Section 37 of the NDPS Act, in the present
case), this court has upheld them for
conflating two competing values, i.e., the right
of the accused to enjoy freedom, based on the
presumption of innocence, and societal
interest - as observed in Vaman Narain
Ghiya v. State of Rajasthan (“the concept of
bail emerges from the conflict between the
police power to restrict liberty of a man who is
alleged to have committed a crime, and
presumption of innocence in favour of the
alleged criminal….”). They are, at the same
time, upheld on the condition that the trial is
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concluded expeditiously. The Constitution
Bench in Kartar Singh v. State of Punjab made
observations to this effect. In Shaheen Welfare
Association v. Union of India again, this court
expressed the same sentiment, namely that
when stringent provisions are enacted,
curtailing the provisions of bail, and
restricting judicial discretion, it is on the basis
that investigation and trials would be
concluded swiftly. The court said that
Parliamentary intervention is based on:
“a conscious decision has been taken by
the legislature to sacrifice to some extent, the
personal liberty of an undertrial accused for
the sake of protecting the community and the
nation against terrorist and disruptive
activities or other activities harmful to society,
it is all the more necessary that investigation
of such crimes is done efficiently and an
adequate number of Designated Courts are set
up to bring to book persons accused of such
serious crimes. This is the only way in which
society can be protected against harmful
activities. This would also ensure that persons
ultimately found innocent are not
unnecessarily kept in jail for long periods.”
xxxx
19. The conditions which courts have to be
cognizant of are that there are reasonable
grounds for believing that the accused is “not
guilty of such offence” and that he is not likely
to commit any offence while on bail. What is
meant by “not guilty” when all the evidence is
not before the court? It can only be a prima
facie determination. That places the court's
discretion within a very narrow margin. Given
the mandate of the general law on bails
(Sections 436, 437 and 439, CrPC) which
classify offences based on their gravity, and
instruct that certain serious crimes have to be
dealt with differently while considering bail
applications, the additional condition that the
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court should be satisfied that the accused (who
is in law presumed to be innocent) is not
guilty, has to be interpreted reasonably.
Further the classification of offences under
Special Acts (NDPS Act, etc.), which apply
over and above the ordinary bail conditions
required to be assessed by courts, require that
the court records its satisfaction that the
accused might not be guilty of the offence and
that upon release, they are not likely to commit
any offence. These two conditions have the
effect of overshadowing other conditions. In
cases where bail is sought, the court assesses
the material on record such as the nature of
the offence, likelihood of the accused co-
operating with the investigation, not fleeing
from justice : even in serious offences like
murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such
special Acts, have to address itself principally
on two facts: likely guilt of the accused and the
likelihood of them not committing any offence
upon release. This court has generally upheld
such conditions on the ground that liberty of
such citizens have to - in cases when accused
of offences enacted under special laws - be
balanced against the public interest.
20. A plain and literal interpretation of the
conditions under Section 37 (i.e., that Court
should be satisfied that the accused is not
guilty and would not commit any offence)
would effectively exclude grant of bail
altogether, resulting in punitive detention and
unsanctioned preventive detention as well.
Therefore, the only manner in which such
special conditions as enacted under Section 37
can be considered within constitutional
parameters is where the court is reasonably
satisfied on a prima facie look at the material
on record (whenever the bail application is
made) that the accused is not guilty. Any other
interpretation, would result in complete denial
of the bail to a person accused of offences
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such as those enacted under Section 37 of
the NDPS Act.
21. The standard to be considered
therefore, is one, where the court would look
at the material in a broad manner, and
reasonably see whether the accused's guilt
may be proved. The judgments of this court
have, therefore, emphasized that the
satisfaction which courts are expected to
record, i.e., that the accused may not be guilty,
is only prima facie, based on a reasonable
reading, which does not call for meticulous
examination of the materials collected during
investigation (as held in Union of
India v. Rattan Malik). Grant of bail on
ground of undue delay in trial, cannot be said
to be fettered by Section 37 of the Act, given
the imperative of Section 436A which is
applicable to offences under the NDPS Act too
(ref. Satender Kumar Antil supra). Having
regard to these factors the court is of the
opinion that in the facts of this case, the
appellant deserves to be enlarged on bail.
22. Before parting, it would be important
to reflect that laws which impose stringent
conditions for grant of bail, may be necessary
in public interest; yet, if trials are not
concluded in time, the injustice wrecked on the
individual is immeasurable. Jails are
overcrowded and their living conditions, more
often than not, appalling. According to the
Union Home Ministry's response to
Parliament, the National Crime Records
st
Bureau had recorded that as on 31 December
2021, over 5,54,034 prisoners were lodged in
jails against total capacity of 4,25,069 lakhs in
the country. Of these 122,852 were convicts;
the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is
that inmates are at risk of “prisonisation” a
term described by the Kerala High Court in A
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Convict Prisoner v. Staten as “a radical
transformation” whereby the prisoner:
“loses his identity. He is known by a
number. He loses personal possessions. He
has no personal relationships. Psychological
problems result from loss of freedom, status,
possessions, dignity any autonomy of personal
life. The inmate culture of prison turns out to
be dreadful. The prisoner becomes hostile by
ordinary standards. Self-perception changes.”
24. There is a further danger of the
prisoner turning to crime, “as crime not only
turns admirable, but the more professional the
crime, more honour is paid to the
criminal”(also see Donald Clemmer's „The
Prison Community‟ published in 1940).
Incarceration has further deleterious effects -
where the accused belongs to the weakest
economic strata : immediate loss of livelihood,
and in several cases, scattering of families as
well as loss of family bonds and alienation
from society. The courts therefore, have to be
sensitive to these aspects (because in the event
of an acquittal, the loss to the accused is
irreparable), and ensure that trials - especially
in cases, where special laws enact stringent
provisions, are taken up and concluded
speedily.”

18. In Rabi Prakash (Supra), the Supreme Court reiterated the
above principles, as under:-

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19. In Bashah (Supra), the accused therein had been in custody for
more than two years and four months with the trial yet to be begun.
The Court released the accused on bail.
20. Similarly, in Manmandal (Supra), the accused therein had been
in custody for almost two years and the Court found that the trial is
not likely to be taken up for hearing in the immediate near future. The
accused was, therefore, released on bail.
21. In Dheeraj Kumar Shukla (Supra), the Supreme Court again
released the accused therein on bail, observing as under:-

22. A learned Single Judge of this Court in Anil Kumar Gandhi
(supra) has held that merely because the trial has not been concluded,
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in view of Section 37 of the NDPS Act, would not be a ground for
release of the accused on bail.

23. In Jaseer S.M . (supra), the accused had been in custody for
eighteen months. The Court held that there is no rule of thumb or
principle of universal application laying down the time period within
which the trial is to commence and to be concluded. The Court
considering the prosecution’s concern regarding the element of flight
risk of the accused, declined to release him on bail.
24. In the present case, however, keeping in view the above referred
judgments of the Supreme Court; the applicant being in custody since
08.6.2021; and only 2 out of 22 witnesses having been examined in
the trial, that that too only partially; coupled with the other factors as
have been discussed in this judgment, the applicant is entitled to be
released on bail on account of the delay in trial and there being no
likelihood of it being concluded in the near future.
Delay in sampling and compliance of Section 52A of the NDPS Act:
25. The applicant has also made out a case for being released on
bail on the grounds of delay in the sampling procedure being carried
out under Section 52A of the NDPS Act. As noted hereinabove, the
alleged recovery has been made from the applicant on 08.06.2021; the
application under Section 52A of the NDPS Act was filed by the
prosecution only on 30.07.2021; and the samples were drawn only on
04.09.2023, that is, with a delay of almost three months.
26. In Kashif (Supra), a Coordinate Bench of this Court considered
the effect of delay in the sampling procedure, held that even a delay
of one and a half months, as was the case therein, raises a doubt
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sufficient enough to entitle the accused to be released on bail. The
Court observed as under:-
“ 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 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
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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 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.”

27. The same Bench followed its above view in Tamir Ali (supra).
CONCLUSION :-
28. In view of the above, in my opinion, the applicant has been able
to make out a case for being released on bail on application of the test
prescribed under Section 37 of the NDPS Act.
29. Accordingly, it is directed that the applicant be released on bail
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in FIR No.0285/2021 registered at Police Station: Sagarpur, South-
West District, Delhi, under Sections 20/61/85 of NDPS Act in SC
No.420/2022 on furnishing a personal bond in the sum of Rs.50,000/-
with one local surety, each, of the like amount, subject to the
satisfaction of the Ld. Trial Court, and further subject to the following
conditions:
i. The Applicant will not leave the country without the prior
permission of the Ld. Trial Court.
ii. The Applicant shall provide his permanent address to the
Ld. Trial Court. The applicant shall also intimate the
Court, by way of an affidavit, and to the IO regarding any
change in his residential address.
iii. The Applicant shall appear before the Ld. Trial Court as
and when the matter is taken up for hearing.
iv. The Applicant shall provide all/latest/fresh mobile
numbers to the IO concerned, which shall be kept by the
applicant in a working condition at all times and shall not
be switched off or changed by him without prior
intimation to the Ld. Trial Court and the IO concerned.
The mobile location be kept on at all times.
v. The Applicant shall not indulge in any criminal activity
and shall not communicate with or come in contact,
directly or indirectly, with any of the prosecution
witnesses. In case the Applicant is found involved in
another case, it will be open to the prosecution to file an
appropriate application seeking cancellation of his bail in
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the present case as well.
30. Needless to state, any observation touching the merits of the
case is purely for the purposes of deciding the question of grant of bail
and shall not be construed as an expression on merits of the matter.
31. The bail applications are disposed of in the above terms.
32. Copy of this judgment be sent to the Jail Superintendent for
information and necessary compliance.


NAVIN CHAWLA, J.
FEBRUARY 5, 2024/ rv/ss
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