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TMI Blog2024 (7) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... the Standing Order No. 1/88 would be a matter of trial. No benefit can be given to the accused for the alleged non-compliance, at this stage, while considering the application for bail. In the present case, the charges have been framed against the applicant for the offences under Sections 29, 21 and 23 of the NDPS Act, which are punishable with a minimum punishment of 10 years and a minimum fine of ₹1,00,000/-. Admittedly, the applicant has spent almost three and a half years in custody, however, he has not undergone a minimum of five years of incarceration in the present case to be entitled to bail solely on the ground of delay in trial. It does not seem entirely implausible at this stage that the trial will not conclude within the next one and a half years - considering that the case is pending since the year 2021, this Court considers it apposite to request the learned Trial Court to expedite the trial. This Court is of the opinion that the applicant has not made out a prima facie case for grant of bail - the bail application is dismissed. - Hon ble Mr. Justice Amit Mahajan For the Applicant : Mr. Archit Upadhayay, Adv. (DHCLSC) with Ms. Ramya Tiwari, Adv. For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Heroin . The said white powdery substance recovered from all the transparent packets was collected in a plastic container. The plastic container was marked as X2 . 6. It is alleged that the plastic container marked as X1 was weighed and found to contain 7500 grams of Heroin. Thereafter, two samples of 10 grams each were drawn from the said container. 7. It is alleged that the plastic container marked as X2 was weighed and found to contain 2300 grams of Heroin. Thereafter, two samples of 10 grams each were drawn from the said container as well. 8. It is alleged that the accused persons admitted to their involvement in the offence of illegal trafficking of Heroin in their respective disclosure statements under Section 67 of the NDPS Act. 9. The accused persons were arrested on 24.01.2021. 10. It is alleged that on 05.02.2021, an application under Section 52A for drawing of samples before the learned Magistrate was filed by the respondent and the same was disposed of on 08.02.2021. 11. The learned Trial Court dismissed the bail application filed by the applicant vide order dated 06.04.2023 in view of the embargo under Section 37 of the NDPS Act. 12. The learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act have been followed and samples had been drawn as per law, whereby, the accused persons had not been prejudiced in any manner. 20. Se submitted that the statutory compliances in regard to mixing of samples and preferring application under Section 52A of the NDPS Act are directory in nature and lack of strict adherence to the said mandates would not render the seizure of the contraband as null and void. She relied on the judgment of the Hon ble Apex Court in the case of State of Punjab v. Balbir Singh : (1994) 3 SCC 299. 21. She submitted that the defences of the applicant in regard to any procedural anomalies would be a matter of trial. CONCLUSION 22. Arguments were heard in detail from the learned counsel for the parties. 23. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is any violation of the mandatory requirements as prescribed under the NDPS Act as to the manner in which search and seizure is effectuated, the courts ought to take a serious view and the benefit, in some circumstances, could be extended to the accused. 28. It is argued that the application under Section 52A of the NDPS Act was filed after a delay of 13 days. It is also argued that the samples were compromised as the substances found in the 6 transparent pouches (recovered from the applicant s bag) were mixed before the samples were drawn. 29. This Court in the case of Sovraj v. State : 2024:DHC:5009, adverting to a number of judgments, has concurred with the view of a Coordinate Bench of this Court in Somdutt Singh @ Shivam : Narcotics Control Bureau : 2023:DHC:8550, and held that the accused persons cannot be allowed to go scot free on minute irregularities in procedure of sampling or belated compliance of the procedure under Section 52A of the NDPS Act and Standing Order No.1/88, especially when the prosecution has not had the opportunity to furnish an explanation. It was held that the alleged violation in manner of mixing of seized substances and whether the same has ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged improper procedure of sampling. 37. As noted above, the issue in regard to improper sampling and any alleged non-compliance of the Standing Order No. 1/88 would be a matter of trial. No benefit can be given to the accused for the alleged non-compliance, at this stage, while considering the application for bail. 38. The substance recovered in the present case was tested with the help of Field Test Kit and found to be positive for Heroin. The applicant, thus, in the opinion of this Court, has failed to satisfy that no reasonable ground exists for believing that he is guilty of the offence. It is trite law that long period of incarceration is a relevant factor for considering the application for bail. However, the same cannot be the sole ground for grant of bail unless the accused person falls within the parameters of Section 436A of the CrPC. 39. Section 436A of the CrPC reads as under: 436A. Maximum period for which an undertrial prisoner can be detained. Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. (emphasis supplied) 41. The Hon ble Apex Court in the case of Satender Kumar Antil v. CBI : (2022) 10 SCC 51 also observed that Section 436A of the CrPC will also apply in cases where the rigours of Section 37 of the NDPS Act are applicable: Special Acts (Category C) 86. Now we shall come to Category C. We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person . We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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