2023 (5) TMI 1385 - HC - Indian Laws

Seeking grant of bail - seizure of contraband - requirement of compliance with Standing Order 1/88 in the context of drawing of samples - delay in making an application to the Magistrate for drawing the sample - whether the Standing Order 1/88 and Section 52A NDPS stands violated in the present case? If yes, what is a reasonable time for filing an application before the Magistrate under section 52A? - HELD THAT - In the present case, the submission for the collection of a sample and the certification under section 52A of the NDPS Act was made on 22.04.2022, i.e., 51 days after the last seizure dated 02.03.2022 - The duration of 51 days cannot be considered a reasonable time period for submitting an application under section 52A NDPS for drawing of sample. Though the court in Arvind Yadav 2021 (7) TMI 1422 - DELHI HIGH COURT held that the trial is not vitiated due to absence of Magistrate thereby violating section 52A, the same did not take into consideration whether the seized contraband is immune from tampering and mischief lying in the custody and possession of the Department for a long period of time. Relying on the aforesaid precedent, in the instant case, there is a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days. Additionally, the Respondent has failed to provide any justification for the delay of 51 days in filing the application under section 52A of the NDPS Act. Thus, there is violation of section 52A in the present case. The sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period. The benefit of the said violation must accrue to the Applicant - Although the applicant did not raise objections regarding delay in filing application under section 52A when the application was filed, but the same being a legal objection can be raised at any point during the subsequent bail application. The applicant is granted bail subject to fulfilment of conditions imposed - bail application allowed.

Issues Involved:
1. Admissibility of co-accused's disclosure statement.
2. Compliance with Standing Order 1/88 regarding sample collection.
3. Delay in filing application under Section 52A of the NDPS Act.
4. Reasonable time for submitting application under Section 52A.
5. Potential tampering with seized contraband.
6. Applicability of Section 37 of the NDPS Act for bail.

Issue-wise Detailed Analysis:

1. Admissibility of Co-accused's Disclosure Statement:
The applicant's counsel argued that the applicant's name surfaced solely from the disclosure statement of co-accused Ganesh Chaudhary, which is inadmissible under the Supreme Court's judgment in Tofan Singh vs. State of Tamil Nadu. The court acknowledged this argument, emphasizing that reliance on such statements without corroborative evidence is insufficient for legal proceedings.

2. Compliance with Standing Order 1/88 Regarding Sample Collection:
The applicant's counsel contended that the seizure memo and sampling were not conducted at the recovery spot, violating Clause 1.5 of Standing Order 1/88. The court examined this claim, noting the necessity for samples to be drawn on the spot in the presence of witnesses, as failure to comply could undermine the integrity of the evidence.

3. Delay in Filing Application Under Section 52A of the NDPS Act:
The applicant's counsel highlighted an unexplained delay of 51 days in making an application for sampling to the Magistrate, referencing the Supreme Court's stance in Union of India v. Mohanlal, which stresses immediate application post-seizure. The court found this delay unreasonable, emphasizing the need for timely applications to prevent tampering.

4. Reasonable Time for Submitting Application Under Section 52A:
The court discussed the ambiguity between Standing Order 1/88 and Section 52A of the NDPS Act, determining that a reasonable time frame for submitting such applications should be within 72 hours, as inferred from Standing Order 1/88. The 51-day delay in this case was deemed excessive and unjustified.

5. Potential Tampering with Seized Contraband:
The court expressed concern over the potential for tampering with contraband held in custody for extended periods without proper oversight. Citing previous judgments, the court underscored the importance of strict adherence to timelines to maintain the integrity of evidence.

6. Applicability of Section 37 of the NDPS Act for Bail:
The court concluded that the applicant, in custody since 07.03.2022, does not require further custodial interrogation, as no recovery was made from him. Consequently, the rigors of Section 37 of the NDPS Act, which typically restrict bail, do not apply. The court allowed bail, imposing strict conditions to mitigate risks of flight, evidence tampering, and witness influence.

The court granted bail to the applicant, subject to conditions such as furnishing bonds, appearing in court, maintaining contact with the investigating officer, and refraining from leaving the country or engaging in criminal activities. The court's observations were limited to the bail application and did not affect the case's merits.

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