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2024 (10) TMI 1265 - HC - CustomsSeeking grant of bail - planting of drugs - seizure of commercial quantity of contraband item - violation of Sections 8/23, NDPS Act - Delay in filing Section 52A Application under NDPS Act - defective notice - Delay in trial and prolonged proceedings - HELD THAT - In the present case, the seizure was done on 12 December 2021 when the applicant was apprehended at Terminal 3, Indira Gandhi International Airport, New Delhi. On interrogation, she denied carrying any contraband, however, a search of her baggage revealed about 1.873 kg Methaqualone valued at approximately Rupees 93.67 lacs. It is pertinent to note that the threshold for commercial quantity of Methaqualone is 500 grams. Alleged Planting of Drugs - HELD THAT - This is an issue which will be decided post-trial, after all evidence has been led, and whether there is a colour change, is it a natural occurrence, specific to he chemical involved or whether the colour change denotes a defect/tampering in seizure or storage of the contraband. At this stage of bail, this issue cannot give any benefit of reasonable doubt to the applicant-accused. Delay in Filing Section 52A Application - HELD THAT - In the present case, the application under Section 52A, NDPS Act was preferred 12 days after the seizure of the contraband from the applicant. The applicant may, in accordance with applicable law, contend prejudice caused on account of this delay, during trial. The judgement of a coordinate Bench in Sovraj v. State 2024 (7) TMI 1538 - DELHI HIGH COURT , on similar lines, had observed ' 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.' Although in Sovraj, this Court had enlarged the accused on bail, same was done inter alia on the issue of absence of independent witnesses and lack of photography or videography of the recovery. Same do not form basis of applicant s contentions herein and thus, application of law in this case will have to be done in the facts and circumstances of this case. In the present matter, at this stage, this Court is of the opinion that the applicant has failed to overcome the threshold as prescribed by Section 37, NDPS Act. Defective notice - HELD THAT - It is noted that provision of Section 50, NDPS Act needs to be complied with only in cases of personal search and not of the person searched. In this regard reference is made to the decision of the Supreme Court in Ranjan Kumar Chadha v. State of Himachal Pradesh 2023 (10) TMI 866 - SUPREME COURT . Objections as regards defective notice under Section 50, NDPS Act or Section 102, Customs Act may not be finally relevant since nothing was revealed in a personal search of the accused. Provisions of Section 50, NDPS Act need to be complied with only in cases of personal search and not where it is of the bag of the person being searched. A proforma typed notice may ideally have both the options i.e. first that the person requires the personal search to be done before a Gazetted Officer/Magistrate; and second that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female). Delay in Trial/Prolonged Incarceration - HELD THAT - In this case, the petitioner has undergone almost 3 years of custody and the trial is progressing. An attempt may be made by the Trial Court to expedite the trial. In the event, that the trial does not proceed ahead expeditiously, needless to state that the applicant will have the right to approach the Court at a subsequent stage. Taking into consideration four times the commercial quantity of contraband seized from the instance of the applicant, there being no prejudicial infirmity in the process adopted by the respondent, rigours of Section 37, NDPS Act, and progressing trial, this Court is unable to reach a prima facie conclusion that applicant is not guilty of the offences and is unlikely to commit the same if enlarged on bail. The threshold of Section 37, NDPS Act not having been crossed, the application for bail cannot be granted. Bail application stands dismissed.
Issues Involved:
1. Alleged planting of drugs. 2. Delay in filing Section 52A application under the NDPS Act. 3. Defective notice under Section 50 of the NDPS Act and Section 102 of the Customs Act. 4. Delay in trial and prolonged incarceration. Issue-wise Detailed Analysis: Alleged Planting of Drugs: The applicant's counsel argued that the drugs were planted, citing discrepancies in the color of the seized substance as noted by a witness. However, the court held that such claims could only be evaluated post-trial after all evidence is presented. The court emphasized that at the bail stage, this argument does not provide reasonable doubt to benefit the applicant. Delay in Filing Section 52A Application: The applicant contended that the authorities delayed filing the Section 52A application for 12 days, beyond the 72-hour guideline. The court noted that while Standing Order 1/88 suggests dispatching samples within 72 hours, there is no strict timeline for filing the application. The court referenced case law indicating that such procedural delays could be addressed during the trial, and mere delay does not automatically benefit the accused at the bail stage. Defective Notice: The applicant argued that the notices issued under Section 50 of the NDPS Act and Section 102 of the Customs Act were defective. The court clarified that Section 50 compliance is necessary only for personal searches, not for baggage searches. The Supreme Court's decision in Ranjan Kumar Chadha was cited to support this view. The court also criticized the use of pre-typed proforma notices that limit the accused's options, advising Customs to modify these forms to align with legal requirements. Delay in Trial and Prolonged Incarceration: The applicant highlighted the slow progress of the trial, with only two witnesses examined since the arrest in December 2021. The court acknowledged the importance of timely trials as per Article 21 of the Constitution but noted that the applicant's custody duration and the trial's progress must be assessed case-by-case. The court referenced several Supreme Court rulings where prolonged incarceration led to bail, but emphasized that the facts and circumstances of each case are crucial. In this instance, the court found that the trial was progressing and suggested that the applicant could reapply for bail if delays persisted. Conclusion: The court concluded that the applicant had not met the threshold required under Section 37 of the NDPS Act to be granted bail, given the commercial quantity of contraband involved and the lack of prejudicial procedural errors. The bail application was dismissed, with the court noting that its observations were solely for the purpose of deciding the bail application and should not influence the trial's outcome.
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