2024 (10) TMI 1362 - HC - Customs

Dismissal of bail application - seizure of commercial quantity of contraband - cognizance of offences allegedly committed by applicant under Sections 8/21/23/28 of the NDPS Act - Improper Sampling Procedure - Delay in filing Section 52A Application NDPS Act - Proforma Notice under Section 50 of NDPS Act - Defective Notice under Section 102, of Customs Act - Delay in Trial. Improper sampling procedure - HELD THAT - In the facts of this case, the seizure was made at the airport in a supervised environment where capsules were found to be containing heroin. As noted, there is no prohibition at least pre-December 2022 when the notification issued by the Ministry of Finance, Government of India came into effect in drawing the samples at the stage of seizure. Considering that the seized capsules would not comply with the definition of either package/container , it would have to be seen whether the process adopted to cut open all 107 capsules and mixing them together in a homogenous mixture would cause any prejudice to the accused - it is mandated that the drugs should be well-mixed to make them homogenous before drawing a sample. Guidelines in terms of multiple packages/containers require an option of bunching them in lots. The phrase used in clause 2.5 of SO 1/89 is may be carefully bunched in lots . This is in contrast to the other clauses which use the words must and should or shall . The option of drawing in lots must be provided in order to accommodate for various situations which may arise on the spot - The Court, therefore, does not find any fault, at least prima facie, in the procedure adopted by the Customs. Delay in Filing Section 52A Application - HELD THAT - As regards the delay in moving application under Section 52A, NDPS Act, there is nothing in the SO 1/89 which prescribes specific time- period. SO 1/88 requires samples to be dispatched to the FSL not later than 72 hours. In this case the delay claimed in filing the application under Section 52A, NDPS Act, as contended by counsel for the petitioner is 17 days. In the present case, the application under Section 52A, NDPS Act was preferred 17 days after the seizure of the contraband from the applicant. The applicant may, in accordance with applicable law, could potentially contend prejudice caused on account of this delay, during trial which would be addressed basis evidence led - Although in SOVRAJ VERSUS STATE GOVT. OF NCT OF DELHI 2024 (7) TMI 1538 - DELHI HIGH COURT , 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 of the NDPS Act. Defective notice - HELD THAT - Though the signatures of the accused are there of having received the notice, with the signatures of the witnesses as well, there is a pre-typed no objection for search to be conducted by a lady customs officer under which the sign is procured of the accused. This practice may not be totally correct considering that Section 50 requires options to be given to the person being searched; in fact an affirmative option is to be exercised for the search being conducted before the nearest Gazetted Officer/Magistrate - 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 - Assessment of these decisions of the Supreme Court cited above shows that bail has been granted in cases having differing facts, some with incarceration of more than 3 years, and some in cases of seizure of ganja. The assessment, therefore, on prolonged custody and delay in trial will depend of facts and circumstances of the case. Whether 2 or 3 years or more, or any other time period is prolonged , is clearly left to the assessment of the Court - In this case, the petitioner has undergone 2.5 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.

Summary

Issues Involved:
1. Improper Sampling Procedure
2. Delay in Filing Section 52A Application, NDPS Act
3. Defective Notice under Section 50, NDPS Act and Section 102, Customs Act
4. Delay in Trial/Prolonged Incarceration

Issue-wise Detailed Analysis:

1. Improper Sampling Procedure:
The applicant contended that the sampling procedure was improper as the Customs Officers mixed the contents of all 107 capsules before taking a sample, which is not in accordance with the prescribed legal procedure. The court analyzed the guidelines under Standing Orders 1/88 and 1/89, which regulate the process of seizure and sampling. The court noted that while these guidelines suggest that samples should be drawn from each package or container, the option to bunch them in lots is also provided. The court found that the procedure adopted by the Customs, in this case, was not faulty as the capsules were small, and mixing them to form a homogenous mixture did not cause prejudice to the accused. The court emphasized that any procedural error must be shown to cause prejudice to the accused for it to be considered at the bail stage.

2. Delay in Filing Section 52A Application, NDPS Act:
The applicant argued that there was a 17-day delay in filing the Section 52A application, which should have been filed within 72 hours. The court referenced various judgments, including Tofan Singh v. State of Tamil Nadu, which highlighted the importance of balancing personal liberty with the need to curb drug trafficking. The court noted that while the delay in filing the application could be raised during the trial, it did not find the delay to be prejudicial at the bail stage. The court highlighted that the prosecution could explain the delay during the trial, and mere delay does not automatically vitiate the evidence.

3. Defective Notice under Section 50, NDPS Act and Section 102, Customs Act:
The applicant claimed that the notices issued under Section 50 of the NDPS Act and Section 102 of the Customs Act were defective as they did not indicate the applicant's receiving prior to her search. The court clarified that Section 50 applies only to personal searches and not to the search of bags or containers. Since nothing was found on the applicant's person, the court found that the provisions of Section 50 were not applicable. However, the court advised Customs to amend their proforma notices to include options for the person being searched, in line with Supreme Court guidelines.

4. Delay in Trial/Prolonged Incarceration:
The applicant raised concerns about the delay in trial and prolonged incarceration. The court acknowledged the importance of the right to a speedy trial under Article 21 of the Constitution but noted that the assessment of delay and prolonged custody depends on the specific facts and circumstances of each case. The court cited various Supreme Court judgments where bail was granted due to prolonged incarceration but emphasized that in this case, the trial was progressing, and the applicant had not yet crossed the threshold for bail under Section 37 of the NDPS Act.

Conclusion:
The court dismissed the bail application, concluding that the applicant failed to overcome the threshold prescribed by Section 37 of the NDPS Act. The court found no prejudicial infirmity in the process adopted by the Customs and emphasized that the observations made were only for the purpose of deciding the bail application, not a comment on the merits of the case.