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TMI Blog2024 (10) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of bail, this issue cannot give any benefit of reasonable doubt to the applicant-accused. Delay in Filing Section 52A Application - HELD THAT:- In the present case, the application under Section 52A, NDPS Act was preferred 12 days after the seizure of the contraband from the applicant. The applicant may, in accordance with applicable law, contend prejudice caused on account of this delay, during trial. The judgement of a coordinate Bench in Sovraj v. State [ 2024 (7) TMI 1538 - DELHI HIGH COURT] , on similar lines, had observed ' As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time.' Although in Sovraj, 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. Atul Tripathi, Sr. Standing Counsel with Mr. V.K. Attri, Mr. Amresh Jha and Ms. Priya Kumari, Advs. JUDGMENT ANISH DAYAL, J. 1. This application has been filed by applicant under Section 439, Code of Criminal Procedure, 1973 [ CrPC ] read with Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985 [ NDPS Act ] seeking regular bail in case arising out of criminal complaint dated 09th June 2022, bearing File No. VIII(AP)10/P I/3290-B/ARRIVAL/2021, by Air Customs Officer, Terminal-3, Indira Gandhi International Airport, New Delhi. Said complaint was filed before the Special Judge (NDPS), Dwarka Court, New Delhi to take cognizance of offences allegedly committed by the applicant under Sections 21/23/29 of the NDPS Act. Factual Background 2. As per the prosecution s narrative, on 12th December 2021, information was received that applicant would be arriving from Addis Ababa, Ethiopia to Terminal-3, Indira Gandhi International Airport, New Delhi by Flight ET 688 and would be carrying narcotics, pursuant to which, two panch witnesses were called by the Customs Authorities. At about 12:20 hours, applicant was intercepted by matching her passport number and date of birth afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recovery witness PW-2 Ms. Ritu Rani was recorded before the Trial Court on 09th April 2024 and 06th June 2024 and the pullandas were opened and after opening, it was found that colour of the thick liquid in the bottle was light brown instead of off-white, and thus, same were planted on the applicant in order to falsely implicate her. 9. Delay in filing Section 52A Application, NDPS Act: Further, it was contended that applicant was apprehended on 12th December 2021 and the application under Section 52A, NDPS Act was moved by the authorities on 24th December 2021 before the court for drawing samples. Thus, there was a delay of 12 days in moving said application; same is in contravention with the law which prescribes moving of the application under Section 52A, NDPS Act within 72 hours of recovery of contraband. 10. Proforma Notice under Section 50, NDPS Act: It was contended that a defective notice which was issued to the applicant under Section 50, NDPS Act as the same did not indicating any receiving rendered by applicant prior to her search. Said notice served on the applicant is extracted as under: 11. Defective Notice under Section 102, Customs Act: It was also contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing decisions: a. Quentin Decon v. Custom 2023:DHC:3897; b. Umar Sebandeke v. Customs 2024:DHC:5184; c. Somdutt Singh @ Shivam v. NCB 2023:DHC:8550; d. Surender Kumar v. Central Bureau of Narcotics (CBN) 2023:DHC:6309; e. Mohit Yadav v. State of NCT, Delhi 2024:DHC:3144; f. State of Kerala v. Rajesh (2020) 12 SCC 122; g. State of Gujrat v. Salimbhai Abdulgaffar Shaikh Ors (2003) 8 SCC 50; h. State v. Syed Amir Hasnain (2002) 10 SCC 88; i. Supdt. Narcotics Control Bureau, Chennai v. R. Paulsamy 2001 SCC (Crl.) 648 (SC); j. Sanjeev Kumar v. NCB Crl Misc (M) No.3962/2002 decided on 17th February 2003; k. State of M.P. v. Kajad (2001) 7 SCC 673; l. Union of India v. Rattan Mallik, (2009) 2 SCC 624; and m. Khet Singh v. Union of India (2002) 4 SCC 380. Analysis 17. Heard counsel on behalf of parties and perused the material placed on record. At the outset, reference may be made to the substance that was seized from the instance of the applicant i.e. Methaqualone which is a psychotropic substance, as envisaged in the NDPS Act. Psychotropic substances are defined in Section 2(xxiii) of the NDPS Act and included in the Schedule to the NDPS Act: (xxiii) Psychotropic substance means any subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent colour than which was referred to by the said witness. However, this is an issue which will be decided post-trial, after all evidence has been led, and whether there is a colour change, is it a natural occurrence, specific to he chemical involved or whether the colour change denotes a defect/tampering in seizure or storage of the contraband. At this stage of bail, this issue cannot give any benefit of reasonable doubt to the applicant-accused. Delay in Filing Section 52A Application 21. The recovery of contraband at the instance of applicant was on 12th December 2021 and seizure was done on the same day in this case. However, applicant states that the application under Section 52A, NDPS Act was moved on 24th December 2021 i.e. after a delay of 12 days, way after 72 hours. 22. In respect of this objection, it is noted that SO 1/89 does not prescribe specific time-period for moving said application. SO 1/88 requires samples to be dispatched to the FSL not later than 72 hours. 23. The Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 traversed the international background and need and necessity to enact the NDPS quite succinctly. For the sake of brevity, a short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended. (emphasis added) 25. The Supreme Court in Ram Samujh (supra), while referring to punishment under the NDPS Act and adverse effects of these activities, also referred to the decision of the Apex Court in Durand Didier v. Chief Secy., Union Territory of Goa (1990) 1 SCC 95; relevant portions of Duran Didier (supra) are reproduced as under: 24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of doubt to the applicant. Relevant portions of Kashif (supra) are as under: 24. Hence , I am of the view that non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering. 25. 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. 26. Another reason which persuades me to take this view is that once the Apex Court 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sovraj v. State 2023:DHC:8550 , on similar lines, had observed as under: 57. It is pertinent to note that the Hon ble Apex Court in the case of Union of India v. Mohanlal (supra) had specifically noted that while the process of sampling cannot be left to the whims of the prosecution and the application for sampling and certification ought to be made without undue delay, there was no room for prescribing or reading a time-frame into the provision. Though no timeframe has been incorporated in the provision, the application should be made without undue delay. The cause of delay, however, in the opinion of this Court, can be explained by the prosecution during the course of trial and is not fatal. 58. As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time. (emphasis added) 31. Although in Sovraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke hand, shoulder, back or head, etc. 95. Therefore, Pawan Kumar (supra) concluded that an external article which does not form part of body is outside the ambit of the word person occurring in Section 50 of the NDPS Act. 96. What is most important to note in Pawan Kumar (supra) is that the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is that although in Pawan Kumar (supra) the search was of the accused as well as the bag, yet since the recovery of the contraband was only from the bag, this Court took the view that Section 50 would have no application. ... 103. Accordingly, Section 50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag. (emphasis added) 33. As noted by the Supreme Court in State of Himachal Pradesh v Pawan Kumar 2005 4 SCC 350 , the search was both of applicant as well as of the luggage she was carrying, but since nothing was recovered from her personal search, Section 50 would not apply. 34. However, a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only if he so requires , upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate . We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganja and the petitioner was in custody for about two and a half years, the Supreme Court while granting bail, stated as under: 3. It appears that some of the occupants of the Honda City Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed. iii. In Man Mandal Anr. v State of West Bengal 2023 SCC OnLine SC 1868 where the seizure was commercial in nature and the petitioner had been incarcerated for about two years and there was no hope of the trial concluding soon, the Supreme Court while granting bail stated as under: 6. Taking into consideration the fact that the petitioners have been incarcerated for a period of almost two years and the trial is not likely to be taken up for hearing in the imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [(1994) 6 SCC 731 : 1995 SCC (Cri) 39] this Court had observed that though 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 of the Constitution would receive a jolt. It was further observed that after the accused person has suffered imprisonment, which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21. We regret to note that despite it all, there has not been visible improvement on this front. (emphasis added) 40. In light of the above discussion, 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 enlarge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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