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2023 (8) TMI 1548 - HC - Indian LawsSeeking grant of regular bail - Smggling of contraband - Compliance with procedural requirements under the NDPS Act, particularly regarding the drawing of samples and preparation of seizure memo - HELD THAT - It is noteworthy that, firstly, Section 52 of the NDPS Act is directory in nature, secondly, non-compliance of the said provision, in itself, cannot render the actions of the Investigating Officers null and void and lastly, whether non-compliance of rules, in cases involving commercial quantity, could be a ground for grant of bail, will have to be examined considering the nature of violation of such standing procedure and consequences thereof. In the opinion of this Court, the applicant also cannot claim parity with the accused persons in SURAJ VERSUS STATE GOVT. OF NCT OF DELHI 2023 (8) TMI 1546 - DELHI HIGH COURT and PRIYARANJAN SHARMA VERSUS STATE OF NCT DELHI 2023 (8) TMI 1547 - DELHI HIGH COURT as the situation(s) involved therein were far from what are involved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case - the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt and it cannot be ignored that the applicant has yet not come up with any plausible explanation, during trial, as to the reason for his possession of such large quantities of contraband. Admittedly, the charges are yet to be framed and no witnesses have been examined so far before the learned Trial Court. Releasing the applicant on bail at this stage may amount to the applicant influencing the witnesses or tampering with evidence. Seeing the gravity of the offence involved and the factual matrix of the case that colossally large quantities of alleged NDPS medicines were recovered from the possession of the applicant and further most relevantly as the applicant is yet to come up with any explanation, why he was in possession of such large quantities of contraband, in the opinion of this Court, grant of bail to the applicant at this stage will not be appropriate and is not called for. The present application seeking grant of regular bail registered under Section (s) 8/21/22/28/29/30 of the NDPS Act at Central Bureau of Narcotics, Delhi, is dismissed.
Issues Involved:
1. Compliance with procedural requirements under the NDPS Act, particularly regarding the drawing of samples and preparation of seizure memo. 2. The impact of alleged procedural lapses on the applicant's bail application. 3. Consideration of the applicant's prolonged judicial custody as a ground for bail. 4. The applicability of precedents and legal standards in granting bail under the NDPS Act. Detailed Analysis: 1. Compliance with Procedural Requirements: The applicant challenged the procedural compliance during the seizure and sampling of the contraband under the NDPS Act. The applicant argued that the samples were not drawn on the spot of recovery, which contravened Standing Order No.1 of 1988, mandating that samples be drawn in the presence of witnesses at the recovery site. The applicant's counsel cited precedents, such as Amani Fidel Chris vs. Narcotics Control Bureau, to emphasize the importance of adhering to procedural mandates to maintain the sanctity of physical evidence. Furthermore, it was contended that the drawing of samples at the CBN Office, absent a Magistrate, violated Section 52A(2)(c) of the NDPS Act, as established in Union of India vs. Mohanlal & Anr. 2. Impact of Alleged Procedural Lapses: The court addressed the applicant's claim that procedural lapses should affect the bail decision. The State's counsel argued that procedural compliance issues should be examined during the trial, not at the bail stage, as per the Supreme Court's ruling in Supdt., Narcotics Control Bureau, Chennai vs. R. Paulsamy. The court concurred, noting that procedural defects or violations of Circulars would be matters for trial. The court also referenced M. Prabhulal vs. Assistant Director, where the Supreme Court declined to exclude evidence obtained through alleged illegal search or seizure. The court emphasized that Section 52 of the NDPS Act is directory, not mandatory, and non-compliance alone does not nullify investigative actions unless it causes prejudice to the accused. 3. Consideration of Prolonged Judicial Custody: The applicant argued for bail based on prolonged judicial custody, citing cases where bail was granted due to extended detention. However, the court found that the applicant's custody duration was significantly shorter than in cited cases like Suraj vs. State Govt. of NCT of Delhi. The court noted that the gravity of the offense, involving large quantities of NDPS medicines, and the applicant's lack of explanation for possession, weighed against granting bail. The court also referenced the Supreme Court Legal Aid Committee vs. Union of India, which suggests considering bail for undertrial prisoners after five years, which was not applicable in this case. 4. Applicability of Precedents and Legal Standards: The court evaluated the applicability of various precedents cited by both parties. It held that reliance on cases like Khet Singh vs. Union of India was misplaced at the bail stage, as the preparation of the seizure memo was a trial issue. The court distinguished the facts of the present case from those in precedents cited by the applicant, emphasizing the heinous nature of the offense and the recovery of contraband from multiple locations. The court reiterated that the burden of proving the applicant's guilt beyond reasonable doubt remains with the prosecution. Conclusion: The court dismissed the bail application, citing the gravity of the offense, the large quantity of contraband involved, and the applicant's failure to provide a plausible explanation for possession. The court underscored that procedural compliance issues would be addressed during the trial, and the applicant's circumstances did not warrant bail at this stage. Observations made were limited to the bail application and not indicative of the case's merits.
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