2024 (2) TMI 1448 - HC - Indian Laws

Seeking grant of bail - recovery of contraband Ganja (cannabis) - drawing of samples as per Section 52A of the NDPS Act or not - delay in trial - Delay in sampling and compliance of Section 52A of the NDPS Act. HELD THAT - There can be no doubt on the proposition that for being released on bail, the accused/appellant must satisfy the conditions as stipulated in Section 37 of the NDPS Act. There can also be no dispute that keeping in view the nature of offence, there is no occasion for applying the more liberal principles for grant of bail to the accused under the NDPS Act where the offence involves commercial quantity. Error in procedure of sampling - HELD THAT - In the present case, therefore, as there is a non-compliance with the procedure prescribed for sampling, the applicant is entitled to be released on bail. Delay in trial - HELD THAT - In Manmandal 2023 (9) TMI 1568 - SC ORDER , the accused therein had been in custody for almost two years and the Court found that the trial is not likely to be taken up for hearing in the immediate near future. The accused was, therefore, released on bail - in the present case, the applicant being in custody since 08.6.2021; and only 2 out of 22 witnesses having been examined in the trial, that that too only partially; coupled with the other factors as have been discussed in this judgment, the applicant is entitled to be released on bail on account of the delay in trial and there being no likelihood of it being concluded in the near future. Delay in sampling and compliance of Section 52A of the NDPS Act - HELD THAT - The applicant has also made out a case for being released on bail on the grounds of delay in the sampling procedure being carried out under Section 52A of the NDPS Act. As noted hereinabove, the alleged recovery has been made from the applicant on 08.06.2021; the application under Section 52A of the NDPS Act was filed by the prosecution only on 30.07.2021; and the samples were drawn only on 04.09.2023, that is, with a delay of almost three months - In Kashif 2023 (5) TMI 1383 - DELHI HIGH COURT , a Coordinate Bench of this Court considered the effect of delay in the sampling procedure, held that even a delay of one and a half months, as was the case therein, raises a doubt sufficient enough to entitle the accused to be released on bail. The applicant has been able to make out a case for being released on bail on application of the test prescribed under Section 37 of the NDPS Act - it is directed that the applicant be released on bail in FIR No. 0285/2021 registered at Police Station Sagarpur, South-West District, Delhi, under Sections 20/61/85 of NDPS Act in SC No. 420/2022 on furnishing a personal bond in the sum of Rs. 50,000/-with one local surety, each, of the like amount, subject to the fulfilment of conditions impsosed - bail application allowed.

Summary

Issues Involved:

1. Error in procedure of sampling.
2. Delay in trial.
3. Delay in sampling and compliance of Section 52A of the NDPS Act.

Issue-wise Detailed Analysis:

Error in Procedure of Sampling:

The judgment highlights a significant procedural error in the sampling process of the contraband allegedly recovered from the applicant. The prosecution mixed the contents of 13 packets of cannabis into one composite whole before drawing samples, which contravenes the prescribed procedure under the Standing Order No. 1/89. This order mandates that each package/container should be treated separately for sampling unless they are identical in all respects. The court cited a recent judgment, Sandeep @ Chiku v. State (NCT of Delhi), which reinforced that the identity of the packages must be preserved, and mixing them is a violation. The court concluded that due to this non-compliance, the applicant is entitled to bail, as it raises reasonable grounds to believe that the accused may not be guilty of the alleged offense.

Delay in Trial:

The applicant has been in custody since June 2021, and despite the filing of the charge sheet, only 2 out of 22 witnesses have been examined partially. The court acknowledged that while delays might not be solely attributable to the prosecution, factors like the COVID-19 pandemic have contributed. Nevertheless, the court emphasized the importance of Article 21 of the Constitution, which guarantees the right to a speedy trial. The Supreme Court's observations in Mohd. Muslim @ Hussain v. State (NCT of Delhi) were cited, noting that prolonged incarceration without trial violates fundamental rights. Consequently, the delay in trial was deemed a valid ground for granting bail.

Delay in Sampling and Compliance of Section 52A of the NDPS Act:

The court also addressed the delay in the sampling procedure under Section 52A of the NDPS Act. The application for drawing samples was filed almost two months after the alleged seizure, and the samples were drawn three months later. The court referred to its previous judgment in Kashif v. Narcotics Control Bureau, which stated that such delays could lead to doubts about sample tampering. The court reiterated that the application for sample collection should be made promptly, ideally within 72 hours of seizure. The delay in this case further supported the applicant's entitlement to bail, as it raised doubts about the integrity of the evidence.

Conclusion:

The court concluded that the applicant met the conditions for bail under Section 37 of the NDPS Act due to procedural errors in sampling, delay in trial, and delay in sampling compliance. The applicant was granted bail with conditions, including not leaving the country, providing a permanent address, appearing for court hearings, maintaining a working mobile phone, and refraining from criminal activities. The judgment emphasized that observations made were solely for deciding the bail application and not on the merits of the case.