2024 (7) TMI 1538 - HC - Indian Laws

Seeking release on bail - Recovery of commercial quantity of Charas (contraband item) - compliance with procedural requirements for sampling under Standing Order No. 1/88 - delay in filing application under Section 52A of the NDPS Act and sending samples to FSL - Rigours of Section 37 of the NDPS Act - Delay in filing application under Section 52A of the NDPS Act delay in sending samples to FSL - HELD THAT - It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc. Rigours of Section 37 of the NDPS Act - HELD THAT - The accusation in the present case is with regard to the recovery of commercial quantity of contraband. Once the rigours of Section 37 of the NDPS Act are attracted, as provided under the Section, the Court can grant bail only when the twin conditions stipulated in Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual requirements for the grant of bail (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; and (2) That the person is not likely to commit any offence while on bail. Delay in filing application under Section 52A of the NDPS Act delay in sending samples to FSL - HELD THAT - In the present case, the applicant was arrested on 18.02.2021 and the application for sampling was filed under Section 52A of the NDPS Act before the learned Magistrate on 09.04.2021. The order for sampling was passed by the learned Magistrate on 22.04.2021. The samples drawn on spot were sent to FSL for report on 01.04.2021 and the samples drawn before the learned Magistrate were sent to FSL on 30.04.2021. Scope of Section 52A of the NDPS Act - HELD THAT - The purpose of incorporation of Section 52A of the NDPS Act is to mitigate the issue of the hazardous nature of the contraband, vulnerability to theft, substitution, constraint of proper storage space, etc. The same is a measure to safeguard the primary evidence even when the contraband is disposed - it is clear that the provision of Section 52A of the NDPS is mandatory and is to be duly complied with before disposal/destruction of the contraband. The same also makes it clear that it is a safeguard against unruly practices to prevent substitution of the contraband which could prejudice the accused person. Section 52A of the NDPS Act provides the procedure as to how the prosecution is required to prepare the inventory and file an appropriate application before the Magistrate for resultant sampling and certification of the inventory without causing delay - It is provided that in such a scenario, the certificate issued by the Magistrate would be treated as the primary evidence. That necessarily means that in a case where narcotic drugs or psychotropic substances are disposed of, the factum of recovery and the nature and authenticity of the contraband which forms the subject matter of the trial can be proved as per the method and manner as laid down in Section 52A of the NDPS Act by way of producing the certificate given by the Magistrate for inventory as stated therein. Belated filing of application under Section 52A of the NDPS Act - HELD THAT - As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time. A Coordinate Bench of this Court in the case of Rishi Dev @ Onkar Singh v. State (Delhi Admn) 2008 (5) TMI 762 - DELHI HIGH COURT , held that the delay in sending samples to FSL is to be properly explained by the prosecution. It was also observed that the said reason should be evident from the record itself. In the present case, evidently, the application under Section 52A of the NDPS Act was preferred almost two months after the seizure of the contraband from the applicant. It is open to the applicant to press the aforesaid defence at the time of the trial. However, at this stage, the applicant has failed to establish a prima facie case as to how he has been prejudiced on account of the delayed compliance. In the opinion of this Court, any observation as to the veracity of the recovery on account of delay to grant bail to the applicant would be premature. Improper Sampling Non-Compliance Of Standing Order No. 1/88 - HELD THAT - The substantial compliance of the Standing Orders is a requirement of law and is to be insisted upon to maintain the sanctity of the samples of the seized contraband - the provision of Section 52A of the NDPS Act applies in regard to the disposal of the seized contraband. The manner of mixing the samples is provided for the purpose of filing an application under Section 52A of the NDPS Act and for the disposal of the contraband. Section 52A of the NDPS Act prescribes the procedure for disposal of seized narcotic drugs and psychotropic substances and the same, in no manner, lays down the procedure for search of the accused and the resultant seizure of the contraband. As discussed above, the Standing Orders issued by the Government from time to time, while exercising power under Section 52A of the NDPS Act, though are a requirement of law which need to be substantially complied with, however, the intent and the provisions thereof, in the opinion of this Court, cannot be imported in the procedure for search and seizure at the time of investigation. Effect of non-compliance at the stage of bail - HELD THAT - It has been observed by the Courts on numerous occasions that the police officials fail to strictly adhere to the minute intricacies of the mandate of the standing instructions. Even though the same shows an abysmal state of affairs, this Court is of the opinion that accused persons cannot be allowed to go scot free on minute irregularities in procedure especially when the prosecution has the opportunity to furnish credible explanation - Prima facie, prejudice caused to the applicant due to the procedural lapse is to be seen in such a case. The lapse should be such that it leaves no conclusion other than the trial being vitiated. Noncompliance of standing orders would, at best, cast suspicion over the veracity of the samples of the seized substance. The same can be overcome by the prosecution by producing evidence to the contrary. This Court is thus not inclined to grant bail to the applicant on the ground of improper sampling. Non-Joinder of Independent Witnesses and No Photography/ Videography - HELD THAT - In the present case, secret information was received at about 8 55PM on 15.02.2021. It is the case of the prosecution that the raiding team reached near the Ramlila Maidan at about 9 40 PM and asked 5-7 people along the route to join the investigation, however, all of them left stating their compulsions. It is stated that another attempt was made after reaching the spot to include passers-by in the investigation, however, they left as well. It is stated in the FIR that no notice could be served to the said individuals due to lack of time. Around 11 PM, the co-accused was spotted and subsequently apprehended. Subsequently, the applicant was apprehended at the instance of the co-accused - In the present case, no notice under Section 100 (8) of the CrPC was given to any person on the refusal to support the Investigating Agency during the search procedure. The secret information was received almost two hours prior to the co-accused being apprehended. It is peculiar that the Investigating Agency was unable to associate even a single public witness in the same time, especially since the prosecution had prior secret information and the applicant and coaccused were apprehended at a public place. Thus, while it is true that the effort, if any, made by the prosecution to have the search conducted in the presence of the independent witnesses would be tested during the course of trial and the same may not be fatal to the case of the prosecution, however, the benefit, at this stage, cannot be denied to the accused. Delay In Trial - HELD THAT - It is trite law that grant of bail on account of delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act - it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. In the present case, the trial is likely going to take long. Speedy trial in such circumstances does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time. This Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the ground of absence of independent witnesses, no photography or videography of the recovery and prolonged delay in the trial - In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage, there are reasonable grounds to believe that the applicant is not guilty of the alleged offence. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail. The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹1,00,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:
1. Applicability of Section 37 of the NDPS Act for granting bail.
2. Delay in filing application under Section 52A of the NDPS Act and sending samples to FSL.
3. Compliance with procedural requirements for sampling under Standing Order No. 1/88.
4. Non-joinder of independent witnesses and absence of photography/videography.
5. Delay in trial and its impact on the applicant's right to bail.

Detailed Analysis:

1. Applicability of Section 37 of the NDPS Act for Granting Bail:
The judgment emphasizes that for granting bail under the NDPS Act, the accused must satisfy the twin conditions of Section 37(1)(b): (i) reasonable grounds for believing that the accused is not guilty of the offence, and (ii) that the accused is not likely to commit any offence while on bail. The Court must also consider factors like the nature and gravity of the accusation, severity of punishment, and likelihood of the accused absconding. In this case, the applicant argued for a liberal interpretation of Section 37 due to procedural lapses by the prosecution.

2. Delay in Filing Application under Section 52A of the NDPS Act and Sending Samples to FSL:
The applicant argued that the delay in filing the application under Section 52A and sending samples to FSL violated procedural guidelines, specifically Standing Order No. 1/88, which requires samples to be dispatched within 72 hours. The Court discussed the mandatory nature of Section 52A for the disposal of seized narcotics and the role of the Magistrate in certifying the inventory and samples. However, it concluded that since the contraband was not disposed of, the delay could be justified during the trial, and mere delay would not vitiate the evidence.

3. Compliance with Procedural Requirements for Sampling under Standing Order No. 1/88:
The applicant challenged the sampling procedure, arguing non-compliance with Standing Order No. 1/88, which mandates drawing samples from each package/container. The Court noted that while substantial compliance with Standing Orders is a requirement of law, deviations do not automatically render the evidence inadmissible. The prosecution must prove the seized substance is the contraband, and any procedural lapse would be examined during the trial.

4. Non-Joinder of Independent Witnesses and Absence of Photography/Videography:
The applicant contended that no independent witnesses were involved, and no photography/videography was conducted during the recovery, despite being in a public place. The Court acknowledged that while the absence of independent witnesses and lack of photography/videography could cast doubt on the prosecution's case, these issues would be scrutinized during the trial. However, the benefit of doubt due to these lapses could not be denied at the bail stage.

5. Delay in Trial and its Impact on the Applicant's Right to Bail:
The Court recognized that prolonged incarceration without trial completion undermines the right to life and liberty under Article 21 of the Constitution. The applicant had been in custody for over three years, with the trial at an early stage. The Court cited precedents where bail was granted due to undue delay in trial, emphasizing that conditional liberty must override statutory restrictions under Section 37 of the NDPS Act in such cases.

Conclusion:
The Court granted bail to the applicant, considering the absence of independent witnesses, lack of photography/videography, and prolonged delay in trial. It imposed conditions to ensure the applicant's cooperation with the investigation and prevent any influence on the trial process. The judgment clarified that observations made were for deciding the bail application and should not influence the trial's outcome.