2023 (8) TMI 1547 - HC - Indian Laws

Grant of bail - recovery of contraband - contrary to the procedure laid down under Section 52A (2) of NDPS Act - whether the sampling was done correctly or incorrectly or whether the samples have been tampered with, will not be a question which needs to detain this Court as of now? - HELD THAT - This Court has considered the judgments of the Single Bench of Bombay High Court in case of SANTOSH PANDURANG PARTE VERSUS AMAR BAHADUR MAURYA AND ANR. 2023 (7) TMI 1486 - BOMBAY HIGH COURT and agrees with the observations made therein. Applying the ratio in the present case, it appears that there has been a prima facie violation of provisions of Section 52A (2) of NDPS Act not only in terms of drawing of samples by the complainant on 16.10.2019, which, according to clause (c) of sub-Section (2) of Section 52A of NDPS Act was conferred and vested only upon the Magistrate and none else. That apart, even sending of the samples drawn by the complainant, instead of those drawn by Magistrate, for chemical analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act. The judgment of the Supreme Court in Bothilal s 2023 (4) TMI 1188 - SUPREME COURT also makes it clear as to in what manner the prosecuting agencies are to not only prepare an inventory of the contraband seized but also the manner in which the Magistrate alone is empowered or competent to draw the samples in accordance with Sections 52A(2)(c) of NDPS Act. The same appears, prima facie, to have been violated in the present case. This Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - the bail application stands disposed of.

Summary

Issues Involved:
1. Legality of the sample collection procedure under Section 52A of the NDPS Act.
2. Applicability of Section 37 of the NDPS Act in light of Article 21 of the Constitution.
3. Consideration of bail in the absence of direct recovery from the applicant.

Issue-wise Detailed Analysis:

1. Legality of the Sample Collection Procedure:

The primary issue revolves around the procedure adopted for the collection and analysis of samples as per the NDPS Act. The applicant's counsel argued that the mandatory provisions under Section 52A(2) of the NDPS Act were violated. Specifically, the law mandates that the drawing of samples from seized contraband should be conducted by a Magistrate, not by the investigating officer. The counsel cited the Supreme Court's judgment in Bothilal vs. Intelligence Officer, Narcotics Control Bureau, emphasizing that the process of drawing samples must occur in the presence and under the supervision of a Magistrate, which was not followed in this case. The samples were initially drawn by the complainant on 16.10.2019, contrary to legal requirements, and the samples sent for forensic analysis were those drawn by the complainant, not the Magistrate. This procedural lapse was argued to be a significant violation, impacting the validity of the evidence and entitling the applicant to bail.

2. Applicability of Section 37 of the NDPS Act in Light of Article 21:

The applicant's counsel further argued that the rigors of Section 37 of the NDPS Act, which imposes strict conditions for granting bail in cases involving commercial quantities of narcotics, should not override the constitutional rights under Article 21. The counsel referred to the Supreme Court's judgment in Jagmohan Bahl and Another vs. State (NCT of Delhi) and Another, asserting that the constitutional guarantee of personal liberty should take precedence. The applicant had been in custody for over 3 years and 7 months without direct recovery of contraband from him, which, according to the counsel, warranted consideration of bail under Article 21.

3. Consideration of Bail in the Absence of Direct Recovery:

The court acknowledged that no contraband was recovered directly from the applicant. The seizure of 10 kgs of Charas was from a co-accused, and the applicant's involvement was inferred based on circumstantial evidence, such as call records. The court noted that while the quantity involved was commercial, the absence of direct recovery from the applicant and the procedural lapses in sample collection were significant factors. The court found that the procedural violations, particularly the improper sampling process, prima facie supported the applicant's case for bail.

The court, after considering the arguments and the procedural irregularities, decided to grant bail to the applicant. The decision was influenced by the prolonged incarceration without direct recovery and the potential violation of procedural safeguards under the NDPS Act. The applicant was ordered to be released on bail with specific conditions, including surrendering his passport, cooperating with the trial, and ensuring his location is available to the authorities.

In conclusion, the judgment highlighted the importance of adhering to procedural requirements under the NDPS Act and balanced the statutory restrictions with constitutional rights, ultimately granting bail to the applicant due to the procedural lapses and the absence of direct evidence of recovery.