2021 (4) TMI 925 - HC - Indian Laws

Grant of Regular Bail - 65 pellets/capsules allegedly recovered from the stomach of petitioner - instruction 1/88 dated 15.03.1988 of Narcotic Control Bureau - non-compliance of Section 50 of NDPS Act - HELD THAT - It has been categorically stated in the complaint in question that notice under Section 50 of the NDPS Act was issued to the accused Bobby Collins Anagor by Sh. B.L.Bairwa, IO, NCB and he was also explained of his legal rights that if he desires his search can be conducted before a Magistrate or a Gazetted officer to which he denied and also wrote the same on the Notice under Section 50 of the NDPS Act. It is further noted that Sh.CSK Singh, IO offered their personal search to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recovered from his personal search - With regard to compliance under Section 67 of the Act, it has been averred in the complaint that once the accused/petitioner disclosed carrying pellets/ capsules in his stomach, he was served with notice under Section 67 of the Act, on which he requested the NCB officers to take him to NCB office to enable him to tender his voluntary statement. Petitioner recorded his voluntary statement in his own handwriting in which he accepted having swallowed pellets/capsules of drugs and requested to take him to hospital. A small amount of powder was taken separately from each packet and tested separately with the help of field testing kit which gave results for cocaine. Since all the recovered cocaine from 65 capsules were of same size, packaging, texture, colour and property, they were transferred to a polythene packet and weighed. It came out to be 1.320 kg, out of which two samples of 5 gms each were drawn and put inside two zip lock pouches. The process was completed in the presence of CSK Singh, Investigating Officer and two independent witnesses and after completion of other necessary procedure, the sample so obtained and marked was sent to the Chemical Examiner, CRCL. Pertinently, the petitioner has approached this Court when only one prosecution witness remains to be examined and trial is at the fag end. During the course of hearing, learned counsel sailed this Court through examination and cross-examination of witnesses PW-3 and PW-10 to point out various infirmities in the prosecution case. Prosecution evidence is yet to be concluded and testimonies of other witnesses are not before this Court, hence, it would not be worthwhile to scrutinize the statements of these two witnesses in piecemeal. Furthermore, in what way and manner the prosecution failed to follow the procedure prescribed under the Act, can be established by the petitioner during his evidence in defence. Petition dismissed.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Compliance with Section 67 of the NDPS Act.
3. Procedural and material infirmities in the prosecution's case.
4. Adherence to guidelines under Standing Orders 1/88 and 1/89.
5. Bail application considerations under Section 37 of the NDPS Act.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The petitioner argued that the procedure prescribed under Section 50 of the NDPS Act was not followed, as no Gazetted Officer or Magistrate was called during the search. The court noted that the complaint stated a notice under Section 50 was issued to the petitioner, explaining his legal rights, which he declined in writing. The NCB officers offered their personal search, which was also refused by the petitioner. The court found that the prescribed procedure was followed, as the petitioner was informed of his rights and chose not to exercise them.

2. Compliance with Section 67 of the NDPS Act:
The petitioner contended that the conditions under Section 67 were not met. The court observed that once the petitioner disclosed carrying drugs in his stomach, he was served with a notice under Section 67 and voluntarily recorded his statement in his handwriting, admitting to swallowing drug pellets and requesting to be taken to a hospital. The court found that the procedure under Section 67 was adhered to, as the petitioner voluntarily cooperated and provided a written statement.

3. Procedural and Material Infirmities in the Prosecution's Case:
The petitioner highlighted several procedural lapses, including the non-individual sampling of the 65 pellets and discrepancies in witness testimonies. The court acknowledged these contentions but noted that only one prosecution witness remained to be examined, and the trial was near completion. The court emphasized that these issues could be addressed during the defense evidence and final arguments in the trial court, rather than in a piecemeal examination at this stage.

4. Adherence to Guidelines under Standing Orders 1/88 and 1/89:
The petitioner argued that the guidelines under Standing Orders 1/88 and 1/89 were not followed, particularly regarding the sampling and testing of the seized contraband. The court noted that the prosecution claimed compliance with these guidelines, which are advisory and not statutory. The court found that the guidelines were generally adhered to, as the seized drugs were properly classified, weighed, and sampled on the spot, and the samples were tested and found positive for cocaine.

5. Bail Application Considerations under Section 37 of the NDPS Act:
The petitioner sought bail, citing prolonged custody and alleged procedural lapses. The prosecution opposed the bail, citing the commercial quantity of contraband and the likelihood of the petitioner absconding if released. The court referred to the rigors of Section 37 of the NDPS Act, which imposes stringent conditions for granting bail in cases involving commercial quantities of narcotics. The court found that the trial was at a critical stage, with only one prosecution witness remaining, and dismissed the bail application without delving into the merits of the case.

Conclusion:
The court dismissed the bail application, emphasizing that the petitioner can raise procedural and material infirmities during the trial. The court found that the prosecution generally complied with the prescribed procedures and guidelines, and the stringent conditions under Section 37 of the NDPS Act warranted the denial of bail at this stage.