2024 (5) TMI 1477 - HC - Indian Laws

Seeking grant of bail - seizure of narcotic substance from the co-accused - non-compliance of the mandate contained in section 50 of the NDPS Act, 1985 - appraisal memo does not specifically inform the applicant that he has a legal right to be searched 'only' before the nearest Magistrate or Gazetted officer - despite the applicant not availing the right to be searched before the Magistrate or Gazetted officer, it was incumbent upon the NCB officials to conduct the search before the Gazetted officer - HELD THAT - In the case at hand, the seizure was effected on 3rd October, 2021. The investigating officer, it appears, made an application before the jurisdictional Magistrate on 18th November, 2021. The proceedings before the learned Magistrate were conducted on 4th December, 2021. There is element of delay on the part of investigating officer, in seeking the certification of the inventory of the contraband and drawing of samples thereof. In the case at hand, this interval of time between the seizure and inventory assumes significance in the context of the fact that the examination report issued by CFSL dated 21st February, 2022, indicates, inter alia, that the Exhibit M1, a transparent zip lock bag containing brown colour powder, stated to be 5 gm MD, was received for analysis, though the sample which was drawn from the contraband allegedly recovered from the person of the applicant was allegedly a white colour powder substance as recorded in the seizure panchanama. Prima facie, there is discrepancy in the description of the contraband which was allegedly seized from the applicant and sample collected therefrom, and the sample which was received for analysis by the CFSL. As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out. In any event, the applicant has been in custody since 4th October, 2021. The applicant has been incarcerated for 2 and half years. There are substance in the submission of appellant that having regard to the number of accused arraigned in the crime, and the evidence which the prosecution may be required to be adduce to bring home the charge against the accused, it is extremely unlikely that the trial can be concluded within a reasonable period. The Court is not informed that the applicant has antecedents. Thus, the Court may be justified in drawing an inference that the applicant may not indulge in identical activities if enlarged on bail - the applicant deserves to be enlarged on bail. Bail application allowed.

Summary

Issues Involved:

1. Compliance with Section 50 of the NDPS Act, 1985.
2. Credibility of the panch witness and the evidence of search and seizure.
3. Delay in conducting proceedings under Section 52A of the NDPS Act, 1985.
4. Discrepancy in the description of the contraband substance.
5. Long period of incarceration and the right to a speedy trial.

Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act, 1985:
The applicant challenged the legality of the search and seizure on the grounds of non-compliance with Section 50 of the NDPS Act, 1985. The applicant argued that he was not informed of his right to be searched "only" before a Magistrate or Gazetted officer, relying on the case of Sholadoye Samuel Joy vs. The State of Maharashtra. However, the court found that the appraisal memo did inform the applicant of his right to be searched before a Magistrate or Gazetted officer, and the absence of the word "only" did not vitiate the compliance. The court referenced the Supreme Court's ruling in Vijaysinh Jadeja, which does not mandate the use of the word "only." Furthermore, the court noted that the applicant volunteered to be searched by the NCB officials, and thus, there was no requirement for the search to be conducted before a Magistrate or Gazetted officer if the applicant declined the right.

2. Credibility of the Panch Witness and the Evidence of Search and Seizure:
The applicant questioned the credibility of the panch witness, Adil Usmani, claiming he was a "stock witness" for the NCB, having acted as a panch in multiple cases. The court acknowledged the potential implications of using the same panch witness in numerous cases but emphasized that the weight of the panch witness's testimony is a matter for trial. The court also dismissed the applicant's reliance on CCTV footage to challenge the search and seizure, considering it a matter for evidence and trial.

3. Delay in Conducting Proceedings under Section 52A of the NDPS Act, 1985:
The applicant highlighted a delay in conducting proceedings under Section 52A, arguing that the delay in drawing samples raised questions about the safe custody of the seized substance. The court recognized the delay between the seizure on 3rd October 2021 and the proceedings before the Magistrate on 4th December 2021. The court noted that while the NDPS Act does not prescribe a specific timeframe, undue delay could impact the integrity of the process, referencing the Supreme Court's decision in Union of India v. Mohanlal.

4. Discrepancy in the Description of the Contraband Substance:
The court addressed the discrepancy between the white powder allegedly seized from the applicant and the brown powder received for analysis by CFSL. The prosecution's explanation that the color change could occur over time was deemed insufficient without supporting evidence. This discrepancy, coupled with the delay in proceedings under Section 52A, raised doubts about the identity of the sample, impacting the case against the applicant.

5. Long Period of Incarceration and the Right to a Speedy Trial:
The court considered the applicant's prolonged incarceration of over two years and the unlikelihood of a speedy trial due to the number of accused and the complexity of the evidence. Citing the Supreme Court's decisions in Union of India vs. K.A. Najeeb and Rabi Prakash v. The State of Odisha, the court emphasized that prolonged detention without a realistic prospect of trial conclusion violates the right to a speedy trial under Article 21 of the Constitution. The court found merit in the applicant's argument for bail based on long incarceration and the improbability of trial conclusion within a reasonable time frame.

Conclusion:
The court granted bail to the applicant, considering the discrepancies in the evidence, the prolonged incarceration, and the right to a speedy trial. The applicant was ordered to be released on bail with conditions to ensure his presence and compliance with the legal proceedings. The court clarified that the observations made were solely for determining bail entitlement and should not influence the trial court's judgment on the applicant's guilt or innocence.