2023 (5) TMI 1383 - HC - Indian Laws

Delay in filing application under Section 52A of the NDPS Act - what is a reasonable time to make an application to the Magistrate under section 52A NDPS and the effect of delay, if any? - HELD 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. In Mohanlal 2016 (5) TMI 500 - SUPREME COURT , 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. 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 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. 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. 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. 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. 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 - 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. The application is allowed and the applicant is granted bail subject to fulfilment of terms and conditions - Bail application allowed.

Summary

Issues Involved:

1. Admissibility of disclosure statements under Section 67 of the NDPS Act.
2. Compliance with Standing Order 1/88 regarding sampling procedures.
3. Delay in filing application under Section 52A of the NDPS Act.
4. Impact of delay on the integrity of the sample and trial.
5. Conditions for granting bail under NDPS Act.

Issue-wise Detailed Analysis:

1. Admissibility of Disclosure Statements:

The applicant's counsel argued that the arrest was based solely on the disclosure statement of a co-accused, which is inadmissible as evidence under Section 67 of the NDPS Act, as per the Supreme Court's ruling in Tofan Singh v. State of Tamil Nadu. The counsel emphasized that any statement made by an accused under this section is inadmissible unless it leads to a recovery.

2. Compliance with Standing Order 1/88:

The applicant's counsel contended that there was a violation of the Standing Order 1/88 regarding the procedure for drawing samples. The argument highlighted that neither the seizure memo was prepared on the spot nor was the sampling done immediately, which is a mandate as per Clause 1.5 of the Standing Order. The counsel further argued that the sampling procedure adopted by the NCB officials violated the High Court's directions in Basant Rai v. State and the Supreme Court's ruling in Gaunter Edwin Kircher v. State of Goa, which require samples to be taken from each packet.

3. Delay in Filing Application under Section 52A:

The applicant's counsel pointed out the significant delay in filing the application for sampling before the magistrate, which was done 51 days after the last seizure. The counsel argued that this delay is contrary to the precedent set in Union of India v. Mohanlal, which mandates immediate application to the magistrate post-seizure. The counsel also noted that the samples were sent to the Forensic Science Laboratory (FSL) much later than the 72-hour period mandated by Standing Order 1/88.

4. Impact of Delay on Sample Integrity and Trial:

The court analyzed the effect of the delay in filing the application under Section 52A. It was noted that the delay could lead to reasonable apprehension of sample tampering, as the samples were in the custody of the prosecuting agency for over a month and a half. The court emphasized the importance of adhering to a reasonable timeframe for filing applications to prevent tampering, as highlighted in previous judgments like Rishi Dev @ Onkar Singh v. State. The court concluded that non-compliance with Section 52A within a reasonable time casts doubt on the integrity of the sample, and the benefit of such doubt should accrue to the accused.

5. Conditions for Granting Bail:

The court considered the applicant's prolonged custody since 07.03.2022, the absence of any recovery from the applicant, and the completion of the investigation. It was concluded that the applicant is not a flight risk, and the conditions for bail can mitigate concerns about tampering with evidence or influencing witnesses. The court granted bail with specific conditions, including furnishing a personal and surety bond, appearing before the court as required, maintaining contact with the investigating officer, and not leaving the country or engaging in criminal activities during the bail period.

Conclusion:

The court allowed the bail application, emphasizing that the observations made are specific to the bail application and should not influence the merits of the case. The decision underscores the importance of procedural compliance in NDPS cases and the implications of delays in legal processes.