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2023 (12) TMI 1366 - HC - Indian LawsSeeking grant of regular bail - illegal trade in psychotropic substances - Contraband item - inadmissible statements - no reasons to believe were recorded in writing - violation of Section 42 of the NDPS Act - HELD THAT - Section 52-A of the NDPS Act prescribes that upon seizure of psychotropic substances, the officer shall approach the Magistrate, under whose presence and supervision the process of sampling will be conducted and certified to be correct. Though the application under Section 52-A of the NDPS Act has to be made without undue delay, no time limit for the same has been prescribed. A Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi) 2021 (7) TMI 1422 - DELHI HIGH COURT , refused the grant of bail in a case involving commercial quantity of cocaine despite the sampling not being carried out in the presence of a Magistrate. Recently a Co-ordinate Bench of this Court in SURENDER KUMAR VERSUS CENTRAL BUREAU OF NARCOTICS (CBN) 2023 (8) TMI 1548 - DELHI HIGH COURT has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines. There is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act - In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act. Considering the facts and circumstances including the fact that commercial quantities of psychotropic substances have been recovered at the instance of the applicant, it is not possible to form a prima facie view at this stage, that the applicant is not guilty of the offences or that he would not commit similar offences if released on bail. Therefore, the twin conditions of Section 37 of the NDPS Act are not satisfied and bail cannot be granted to the applicant at this stage. The present application is dismissed.
Issues Involved:
1. Admissibility of statements under Section 67 of the NDPS Act. 2. Legitimacy of the search and seizure operations. 3. Compliance with procedural requirements under Sections 42 and 52-A of the NDPS Act. 4. Applicability of Section 37 of the NDPS Act regarding bail. 5. Parity in bail decisions with co-accused. 6. Evidence sufficiency, including WhatsApp chats and lack of CDR records. 7. Previous involvement in similar offenses. Issue-wise Detailed Analysis: 1. Admissibility of Statements under Section 67 of the NDPS Act: The applicant's name emerged from Manish Gupta's statement under Section 67 of the NDPS Act. The applicant argued that no recovery was made following this statement, rendering it inadmissible based on the Supreme Court's ruling in Tofan Singh v. State of Tamil Nadu. However, the court noted that recoveries were made from the applicant's disclosures, making them admissible under Section 27 of the Indian Evidence Act. 2. Legitimacy of Search and Seizure Operations: The applicant contested the legitimacy of the search of the Narela Flat, claiming a lack of authorization and violation of Section 42 of the NDPS Act. The court determined that these procedural compliance issues should be addressed during the trial, as per the precedent set in Praveen Khatri v. State. 3. Compliance with Procedural Requirements under Sections 42 and 52-A of the NDPS Act: The applicant argued non-compliance with Section 52-A, citing delays in procedural adherence. The court referred to the Supreme Court's observations in Mohanlal, emphasizing that while prompt compliance is desirable, the absence of a specific time frame means delay alone does not justify bail. The court found that the applicant failed to demonstrate prejudice due to the delay. 4. Applicability of Section 37 of the NDPS Act Regarding Bail: The court highlighted that Section 37 imposes stringent conditions for granting bail in cases involving commercial quantities. Given the recoveries made at the applicant's instance, the court could not conclude that the applicant was not guilty or would not re-offend if released, thus not satisfying the conditions for bail. 5. Parity in Bail Decisions with Co-accused: The applicant sought bail parity with co-accused Arun Kumar @ Varun, who was granted bail. The court distinguished the cases, noting no recoveries were made from Arun Kumar, and his bail was based solely on Section 67 disclosures, unlike the applicant's case involving substantial recoveries. 6. Evidence Sufficiency, Including WhatsApp Chats and Lack of CDR Records: The applicant argued the insufficiency of WhatsApp chats and the absence of CDR records as evidence. The court noted that the requisite certificate under Section 65B of the Indian Evidence Act had been filed, and the chats supported the applicant's involvement in the trafficking network. 7. Previous Involvement in Similar Offenses: The applicant's involvement in another NDPS case was highlighted by the prosecution, further complicating the bail plea. This added to the court's reluctance to grant bail, considering the potential for re-offending. Conclusion: The court dismissed the bail application, emphasizing the substantial recoveries linked to the applicant and the inability to satisfy the conditions under Section 37 of the NDPS Act. The judgment underscored that procedural issues raised by the applicant would be more appropriately addressed during the trial, and the observations made were solely for the bail decision, not affecting the case's merits. All pending applications were disposed of accordingly.
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