2021 (7) TMI 1422 - HC - Indian Laws

Seeking grant of Interim Bail - seizure of contraband item - non-compliance of Section 52-A of the NDPS Act - HELD THAT - It is manifest from Section 52-A(2)(c) 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 Magistrate and certifying the correctness of the list of samples so drawn. 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 Section52-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. Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May 1989.The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of any narcotic drugs or psychotropic substance their vulnerability to their substitution constraints of proper storage space or any other relevant consideration 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. By this petition petitioner seeks bail on the ground of non-compliance of Section52A 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 as certaining 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. As regards the prayer of the petitioner seeking interim bail on the ground that his wife is suffering the petitioner has enclosed copy of the discharge summary of his wife Ms. Rekha Yadav who had been advised cervicotrochanteric fracture right hip for which the surgery was performed in September 2020 and as per the report received the patient has already recovered from the injury and the surgery and is stable. Further the petitioner has surrendered on 31st March 2021 and thus had adequate time to take care of his wife. As regards the petitioner s medical condition is concerned the documents on record do no suggest any immediate medical treatment or hospitalization. Thus this Court finds no ground to grant interim bail as well to the petitioner. Petition dismissed.

Summary

Issues Involved:
1. Regular Bail under NDPS Act
2. Interim Bail on Medical Grounds
3. Compliance with Section 52-A of NDPS Act

Detailed Analysis:

1. Regular Bail under NDPS Act:

The petitioner sought regular bail in connection with FIR No. 61/2019 under Sections 21/25/29 of the NDPS Act. The petitioner's counsel argued that the petitioner was falsely implicated, with the recovery being highly improbable and no public witness associated. The counsel cited non-compliance with Section 52-A of the NDPS Act as grounds for bail, referencing the Supreme Court decision in 'Union of India Vs. Mohanlal and Anr.' and a Division Bench decision of the Calcutta High Court.

The prosecution countered that the call detail records (CDRs) showed the petitioner was in regular contact with the co-accused and present at the spot of arrest. The prosecution also stated that Section 52-A NDPS Act pertains to the final disposal of drugs during trial or appeal, not affecting the current bail application. The court found no merit in the petitioner's claim of false implication or non-compliance with Section 52-A as grounds for bail, emphasizing that these issues should be examined during the trial.

2. Interim Bail on Medical Grounds:

The petitioner also sought interim bail due to respiratory ailments and his wife's medical condition. The petitioner had been treated for asthma and argued that his wife, suffering from osteoporosis and depression, required his support. The prosecution noted that the petitioner had previously been granted interim bail, which he surrendered on 31st March 2021, and that his wife's surgery had already been completed with no further medical requirements. The court found no immediate medical necessity for the petitioner’s release and thus denied interim bail.

3. Compliance with Section 52-A of NDPS Act:

The petitioner argued non-compliance with Section 52-A of the NDPS Act, which mandates procedures for the seizure, storage, and disposal of drugs. The Supreme Court in 'Union of India Vs. Mohanlal and Anr.' clarified that samples should be drawn in the presence of a Magistrate. However, the court noted that the trial would not be vitiated by drawing samples at the spot in the absence of a Magistrate if they were sent to FSL for analysis. The court held that the issue of non-compliance with Section 52-A would be considered during the trial and did not warrant bail at this stage.

Conclusion:

The petition for regular bail was dismissed as the court found no grounds for false implication or non-compliance with Section 52-A to justify bail. The request for interim bail was also denied due to the lack of immediate medical necessity for the petitioner or his wife. The court emphasized that the issues raised would be more appropriately addressed during the trial.