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TMI Blog2023 (5) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance. Thus, a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS construes that a reasonable time must be read into section 52A(2) for making an application for drawing the sample and certification before the Magistrate. In the present case, the sample was kept in the custody of the prosecuting agency for more than one and a half month, thus, raising doubt with regards to tampering of the same. The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.02.2022. The contraband was seized, sealed and deposited in the Malkhana on 24.02.2022. On 25.02.2022, the JIO, Anoop Kumar submitted the seizure report. D. On 24.02.2022, during the course of enquiry the above said officials got the information from the owner of the DHL office that the said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary. He was apprehended on 25.02.2022 by the team of the Respondent. E. On the basis of disclosure statement of Ganesh Chaudhary, on 28.02.2022, second seizure was made at Terminal 3, IGI Airport, New Delhi from the consignment number IZ98X1W70451682510 where recovery of 15000 Zolpidem tablets was made. Further, on 02.03.2023, on the basis of Ganesh Chaudhary s disclosure statement, a recovery of 19440 Tramadol tablets was made from 3 packages at Global India Express Pvt. Ltd., Mahipalpur, New Delhi. F. Ganesh Chaudhary disclosed that the said parcel was sent by coaccused Tamir Ali to be couriered to USA. On the basis of this disclosure statement, the co-accused Tamir Ali was arrested. G. Further on 06.03.2022, on initial enquiry, co-accused Tamir Ali allegedly disclosed that his three other associates namely th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er versus State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) decided on 16.03.1993 in which it was clarified that sample has to be taken from each packet. While in the present set of facts, the NCB officials have not taken the sample from each lace roll, rather sample was taken from only one lace roll, thus, violating the sampling procedure. E. The learned counsel for the Applicant submits that no reasonable explanation for delay of application for sampling before magistrate is given by the respondent. The sample of 10 tablets was taken and was put together with all the strips in a gunny bag. Later on, after around 51 days from the date of collection of last sample on 02.03.2022, on 22.04.2022, application for sampling under section 52A of NDPS Act was presented before the Ld. Magistrate. It is trite law laid down in Union of India v. Mohanlal (2016) 3 SCC 379 decided on 28.01.2016 that the application to the Magistrate for sampling has to be moved immediately after seizure. In the present case, the application under section 52A for drawing of sample was made after inordinate delay of around 51 days. F. He also states that the samples which were taken at the time of seizure w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king drawing of samples and correctness of inventory. B. Even assuming, without admitting, that there was a delay in moving application under Section 52A of the NDPS Act, he states that the applicant is barred from raising this issue today. The application under Section 52A of the NDPS Act for collection of samples was filed on 22.04.2022 in the presence of the applicant and/or his counsel. The applicant at that point in time raised no objection to collection of sample and had he raised the objection, the respondent would have furnished explanation that: (a) there was no delay and; (b) the reasons for the alleged delay, if any. As of today, the application under section 52A stood filed and allowed. Therefore, the applicant is barred from raising the said issue today. C. Mr. Bansal, learned standing counsel states that the delay has been considered fatal in some of the cases as the samples were capable of being tampered with. In the present case, the contraband comprised of strips which were seized and the seizure memo dated 24.02.2022 duly mentioned that the strips were in a sealed form and the godown receipt also shows that there was no tampering with the contraband. D. For the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough Standing Counsel in BAIL APPLN. 1416/2021 (2021:DHC:1965) wherein a coordinate bench of this court while considering the issue of non-compliance of Section 52A NDPS and whether petitioner is entitled to bail on this ground alone, observed as under: 13. By this petition, petitioner seeks bail on the ground of noncompliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the nonpresence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground. G. Lastly, he states that these are all issues of defence which are being raised by the applicant and can only be adjudicated after trial. ANALYSIS 5. I have heard learned counsel for the parties. 6. At the time of arguments, the learned counsel for the Applicant has restricted his arguments to violation of the Standing Order 1/88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 9. Clause 1.5 and 1.13 of Standing Order 1/88 is reproduced below :- 1.5 Place and time of drawal of sample. Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. ... ... 1.13. Mode and Time limit for dispatch of sample to Laboratory: The samples should be sent either by insured post or through special messenger duly authorize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amples and certification must be made without any delay. The Court, whilst being conscious of the obfuscation created in view of Standing Order 1/89 and Section 52A NDPS, observed as under: Seizure and Sampling 12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16- 1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads: 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. ... ... 31. To sum up we direct as under: 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading seizure and sampling . The sampling shall be done under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and certification ought to be made without undue delay... . What is reasonable has been left open by the Apex Court in the said judgment. 19. It cannot be the intent of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance. 20. Thus, a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS construes that a reasonable time must be read into section 52A(2) for making an application for drawing the sample and certification before the Magistrate. Effect of Delay 21. Respondents have placed reliance on the judgment of Arvind Yadav (supra), passed by a coordinate bench of this court, which held that violation of section 52A due to absence of Magistrate at the time of drawing the sample did not vitiate the trial and hence, the accused is not ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held in Mohanlal (supra) that the application under 52A has to be made without any undue delay, there should not be any reason for delaying the filing of application. 27. The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case, the same has not been moved, the reasons for delay must be explained by the authorities. Reasonable time under section 52A 28. What is reasonable time depends on the facts and circumstances of each case. However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame. 29. In the present case, the application for drawing of sample and certification of seizure memo under section 52A NDPS was filed on 22.04.2022 i.e., af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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