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TMI Blog2023 (5) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... mmune from tampering and mischief lying in the custody and possession of the Department for a long period of time. Relying on the aforesaid precedent, in the instant case, there is a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days. Additionally, the Respondent has failed to provide any justification for the delay of 51 days in filing the application under section 52A of the NDPS Act. Thus, there is violation of section 52A in the present case. The sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period. The benefit of the said violation must accrue to the Applicant - Although the applicant did not raise objections regarding delay in filing application under section 52A when the application was filed, but the same being a legal objection can be raised at any point during the subsequent bail application. The applicant is granted bail subject to fulfilment of conditions imposed - bail application allowed. - Hon'ble Mr. Justice Jasmeet Singh For the Petitioner : Mr. Aditya Aggarwal, Ms. Kajol Garg, Mr. Naveen P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the applicant has made the following submissions: i. He stated that the name of the Applicant surfaced from the disclosure statement of the co-accused Ganesh Chaudhary, which is not admissible as per the Apex Court‟s judgment of Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. ii. The learned counsel strongly places reliance on the Standing Order 1/88 in the context of drawing of samples. He contends that neither seizure memo nor sampling was done at the spot where the alleged recovery was done. He relies on Clause 1.5 of the Standing Order 1/88 which reads as under: 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. iii. Learned counsel further contends that there is no explanation on the part of delay in making application under section 52A of NDPS Act for sampling before the Magistrate. There is no explanation for the inordinate delay by the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorically declined to define any time frame within which the application has to be made before the Magistrate under Section 52A. ii. He further contends that seized contraband were duly submitted to the godown in a sealed form and that there was no tampering with the same. iii. He states that no prejudice has been caused to the Applicant for delay in filing an application under section 52A of NDPS Act. Furthermore, he states that the Applicant is barred from raising this issue today as the applicant at that point in time raised no objection to collection of sample. iv. He strongly places reliance on the judgment of this court in Arvind Yadav In JC Through His Pairokar v. Govt Of NCT Delhi Through Standing Counsel in BAIL APPLN. 1416/2021 (2021:DHC:1965) wherein it was held: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esence 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. ...... 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. 14. In the present case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the NDPS Act. 19. In light of the above discussion, I am of the view that there is violation of section 52A in the present case. The sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period. The benefit of the said violation must accrue to the Applicant. 20. Although the applicant did not raise objections regarding delay in filing application under section 52A when the application was filed, but the same being a legal objection can be raised at any point during the subsequent bail application. 21. The applicant has been in custody since 07.03.2022 and over a year has elapsed since then. There is no need for any custodial interrogation of the applicant. Furthermore, no recovery was effected from the applicant or at his instance. As a result, the rigors of Section 37 of the NDPS Act do not apply to the applicant. 22. The triple test i.e., a) flight risk, b) tampering with evidence, and c)influencing witnesses, can be addressed by imposing strict conditions for bail. 23. For the aforesaid reasons, the application is allowed and the applicant is granted bail on the following terms and conditions: a. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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