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TMI Blog2024 (2) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ets, making it a total of 13 packets. It is further alleged that on the basis of a visual inspection and from smelling the packets, it could be made out that these packets were containing Ganja (cannabis). Later, the contents of these 13 dark brown packets were taken out from these packets and were mixed together. The total weight of the contraband was 26.790 kgs. The seized Ganja (cannabis) was sealed and deposited in the Malkhana of Police Station, Sagarpur. 3. It is further alleged that, in the Police custody, the applicant disclosed that he along with another person, namely Akarm, used to transport cannabis/Ganja from Bawanipatna, (Naxalite Belt), Odisha to Delhi and other places at the direction of one Ajay Lamba. The prosecution alleges that on arrest, Ajay Lamba disclosed that he used to take Ganja from a person, namely Pramod Kumar Tandi @ Tunda, who does agriculture/business of Cannabis in Odisha. He further disclosed that he engaged the applicant herein and Akarm for transporting and supplying Cannabis/Ganja from Pramod Kumar Tandi @ Tunda. The CDRs. of the co-accused, that is the applicant, Ajay Lamba, Akarm, and Pramod Kumar Tandi @ Tunda, were analysed, which showed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC OnLine Del 3319; and Gopal Das v. NCB, 2021 SCC OnLine Del 329 he submits that the sampling procedure not being in accordance with the above-mentioned Standing Orders, the applicant has met the strict standards for grant of bail as prescribed in Section 37 of the NDPS Act. 7. The learned counsel for the applicant further submits that in the present case, upon seizure, an application under Section 52A of the NDPS Act for the drawing of samples was made before the learned Magistrate only on 30.07.2021, and the samples were drawn only on 04.09.2021, that is after a period of almost three months from the date of the alleged seizure. Placing reliance on the judgment of this Court in Kashif v. Narcotics Control Bureau, 2023 SCC OnLine Del 2881; and Tamir Ali v. Narcotics Control Bureau, 2023 SCC OnLine Del 3015, he submits that this delay also entitles the applicant to be released on bail. Submissions of the learned APP 8. On the other hand, the learned APP submits that Section 37 of the NDPS Act is an exception to the general principle of law, and where the offence is in relation to a commercial quantity, the accused can be released on bail only if the Court is satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such non-compliance. In support, he places reliance on the judgment of this Court in Masibur Khan v. State (Govt. Of NCT of Delhi), 2023 SCC OnLine Del 3326; Shailender v. State of NCT of Delhi, 2022 SCC OnLine Del 4896; and Saddad Alam v. State (Govt. Of NCT Delhi), Neutral Citation No. 2023:DHC:7494, and of the High Court of Bombay in Mukesh Rajaram Choudhari v. The State of Maharashtra, Neutral Citation No.2023:BHC-AS:28549. 11. He submits that, in the present case, there was a substantial compliance with the said Standing Orders and therefore, the accused be not released on bail. Analysis 12. I have considered the submissions made by the learned counsels for the parties. 13. There can be no doubt on the proposition that for being released on bail, the accused/appellant must satisfy the conditions as stipulated in Section 37 of the NDPS Act. There can also be no dispute that keeping in view the nature of offence, there is no occasion for applying the more liberal principles for grant of bail to the accused under the NDPS Act where the offence involves commercial quantity. Error in procedure of sampling: 14. In the present case, however, as is evident from the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar exercise was done for the packages recovered from the backpacks carried by the accused. This is clearly is not in compliance with the Standing Orders. xxxx 27. The High Court of Bombay in Mukesh Rajaram Choudhari (supra) has held that non-compliance with the procedure under Section 52A of the NDPS Act cannot mean that the accused automatically becomes entitled to bail as a matter of right. In my view, however, the non-compliance with the provisions of Section 52A of the NDPS Act would need to be explained by the prosecution at the trial and till then, the cardinal rule that the accused is presumed to be not guilty shall get attracted for holding that "there are reasonable grounds for believing that he is not guilty of such offence" and that the accused meets the pre-condition for release on bail as prescribed in Section 37 of the Act. It is settled law that when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all. As the manner of sampling has been prescribed in the above two Standing Orders, non-compliance thereof would give rise to reasonable grounds for believing that the accused is not guilty of the offence alleged agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 23. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. Staten as "a radical transformation" whereby the prisoner: "loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes." 24. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"(also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects-where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce though the charges have been framed." 22. A learned Single Judge of this Court in Anil Kumar Gandhi (supra) has held that merely because the trial has not been concluded, in view of Section 37 of the NDPS Act, would not be a ground for release of the accused on bail. 23. In Jaseer S.M. (supra), the accused had been in custody for eighteen months. The Court held that there is no rule of thumb or principle of universal application laying down the time period within which the trial is to commence and to be concluded. The Court considering the prosecution's concern regarding the element of flight risk of the accused, declined to release him on bail. 24. In the present case, however, keeping in view the above referred judgments of the Supreme Court; the applicant being in custody since 08.6.2021; and only 2 out of 22 witnesses having been examined in the trial, that that too only partially; coupled with the other factors as have been discussed in this judgment, the applicant is entitled to be released on bail on account of the delay in trial and there being no likelihood of it being concluded in the near future. Delay in sampling and compliance of Section 52A of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., after 51 days from the period of last seizure on 02.03.2022. 30. A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no reasons have been furnished by the Respondent for the delay of 51 days for moving an application under section 52A NDPS. 31. In view of the above discussion, I hold that violation of Section 52A vitiates the sample collection procedure and the benefit of the same must accrue to the Applicant. 32. The application by the respondent under section 52A was filed after a delay of 51 days. At that time, the applicant did not object. However, the same being a legal objection can be raised at any stage." 27. The same Bench followed its above view in Tamir Ali (supra). CONCLUSION:- 28. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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