2024 (4) TMI 1192 - HC - Indian Laws

Seeking grant of regular bail - carrying contraband item cannabis (ganja) - procedural defects in sampling under Section 52A of the NDPS Act - case of petitioner is that the drawing of representative samples from the recovered contraband under Section 52A of the Act is defective and this makes the entire recovery, as well as, the case of the prosecution doubtful - HELD THAT - The Hon ble Supreme Court in the case of State of Punjab v. Balbir Singh 1994 (3) TMI 173 - SUPREME COURT in the context of an argument as to the defect in the sampling procedure so adopted observed that Sections 52 and 57 of the Act contain procedural compliances which are to be adhered to but if there is no strict compliance of the above noted provisions, that by itself cannot render the acts done by the officers of the respondent as null and void, if there is sufficient material against the accused. At the most, a flaw in the sampling procedure may affect the probative value of the evidence. At the same time, the Hon ble Supreme Court also observed that the provisions are directory in nature, therefore, the Court is bound to examine the prejudice which shall be caused to the petitioner and consequent failure of justice due noncompliance. The process of sampling has to be in accordance with Section 52A of the NDPS Act. Any deviation so made in the sampling procedure, shall not ipso facto lead to grant of bail to the accused. At the same time the officers of the respondent cannot completely violate or ignore the provisions of the Act, the Rules framed thereunder or the standing orders. However, any defect alleged to have occurred in the sampling procedure should be egregious and should prima facie cause an irreparable prejudice to the accused. As far as the present case is concerned, it is to be noted that it is not the case of the petitioner that the samples which have been drawn, were drawn from any other pulandas. In fact, there is no dispute that the samples which have been drawn have been taken from the same pulandas which were recovered from the truck. The mere fact that the proceedings under Section 52A of the Act are silent in respect of the number of brown bundles which were there in each of the pulandas prima facie does not cause irreparable prejudice to the petitioner. Further, no objection in this regard has been raised by the petitioner during the process of sampling. At this stage it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged. Accordingly, the present petitioner, along with pending applications, if any, is dismissed Petition disposed off.

Summary

Issues Involved:

1. Whether the petitioner is entitled to bail under Section 439 of the Cr.P.C. in light of the alleged procedural defects in sampling under Section 52A of the NDPS Act.
2. The impact of non-joining of independent witnesses during the recovery of contraband.
3. The relevance of the petitioner's alleged lack of knowledge of the contraband in the truck.

Issue-wise Detailed Analysis:

1. Entitlement to Bail and Procedural Defects in Sampling:

The petitioner sought bail under Section 439 of the Cr.P.C., arguing that the sampling process under Section 52A of the NDPS Act was defective, thus compromising the prosecution's case. The court examined the procedural requirements under Section 52A, which mandates the proper inventory and sampling of seized narcotics. The court referenced the Supreme Court's decision in State of Punjab v. Balbir Singh, which clarified that procedural defects do not automatically nullify the case unless they cause prejudice to the accused. The court further cited judgments indicating that defects in sampling procedures should be assessed at trial rather than at the bail stage. It was noted that the samples were drawn from the same pulandas as recovered, and no objection was raised during the sampling process. Consequently, the alleged procedural defects did not warrant bail, as they did not demonstrate irreparable prejudice to the petitioner.

2. Non-joining of Independent Witnesses:

The petitioner's counsel argued that the recovery was doubtful due to the absence of independent witnesses. The court referred to the prosecution's FIR, which documented efforts to secure independent witnesses who were unwilling to participate. Citing the Supreme Court's ruling in Dharampal Singh vs. State of Punjab, the court held that the absence of independent witnesses does not invalidate the prosecution's case if the evidence is otherwise trustworthy. Thus, the non-joining of independent witnesses was not deemed fatal to the prosecution's case.

3. Petitioner's Knowledge of Contraband:

The petitioner claimed a lack of knowledge regarding the contraband in the truck, asserting that he did not have a driving license and was not responsible for loading the contraband. The court emphasized that knowledge of possession must be inferred from the case's facts and circumstances. The status report revealed multiple contacts between the petitioner and a co-accused, suggesting the petitioner's involvement. The court concluded that the petitioner's argument regarding lack of knowledge did not provide reasonable grounds to believe he was not guilty of the alleged offense.

Conclusion:

The court dismissed the bail application, stating that the petitioner failed to demonstrate reasonable grounds for believing he was not guilty. The court's observations were limited to the bail application and did not reflect on the case's merits. The petition, along with pending applications, was disposed of, and the order was directed to be uploaded on the court's website.