9911796707
TMI Blog2024 (10) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... xture would cause any prejudice to the accused - it is mandated that the drugs should be well-mixed to make them homogenous before drawing a sample. Guidelines in terms of multiple packages/containers require an option of bunching them in lots. The phrase used in clause 2.5 of SO 1/89 is may be carefully bunched in lots . This is in contrast to the other clauses which use the words must and should or shall . The option of drawing in lots must be provided in order to accommodate for various situations which may arise on the spot - The Court, therefore, does not find any fault, at least prima facie, in the procedure adopted by the Customs. Delay in Filing Section 52A Application - HELD THAT:- As regards the delay in moving application under Section 52A, NDPS Act, there is nothing in the SO 1/89 which prescribes specific time- period. SO 1/88 requires samples to be dispatched to the FSL not later than 72 hours. In this case the delay claimed in filing the application under Section 52A, NDPS Act, as contended by counsel for the petitioner is 17 days. In the present case, the application under Section 52A, NDPS Act was preferred 17 days after the seizure of the contraband from the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to state that the applicant will have the right to approach the Court at a subsequent stage. 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 enlarged on bail. The threshold of Section 37, NDPS Act not having been crossed, the application for bail cannot be granted. Bail application stands dismissed. - HON'BLE MR. JUSTICE ANISH DAYAL For the Applicant Through: Mr. J.S. Kushwaha and Ms. Tanya Kushwaha, Advs. For the Respondent Through: 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 08th July 2022, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity], amounting to about Rs. 7.43 crores. 5. Subsequently, the applicant was arrested on the same day i.e. 11th January 2022 and was produced before the Court; applicant is in judicial custody ever since. 6. Applicant moved the Court of Special Judge, NDPS Act, Delhi [ Trial Court ] and vide order dated 09th February 2023, Trial Court dismissed the bail application noting that commercial quantity of contraband was seized and hence, embargo of Section 37, NDPS Act is triggered and as of that date, hurdle of Section 37, NDPS Act was not crossed by the applicant. Hence, the applicant has moved the present bail application. Submissions on behalf of Applicant 7. Improper Sampling: Counsel for applicant contended that sampling procedure followed by the Customs Officers was improper, in that the manner in which the samples were drawn was not in accordance with law. It was submitted that the recovered capsule was cut open and some off-white powdery substance was found inside them and thereafter, all 107 capsules were cut open with blade, each capsule was found to have heroin and the contents of all the capsules were put in a transparent plastic box and sample was taken from the mixed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buzo @Chibuzor Cristatus v. State (Govt. of NCT of Delhi) Submissions on behalf of Customs 13. Senior Standing Counsel appearing on behalf of Customs refuted the above contentions and submitted that due procedure was followed by the Customs Authorities and full compliance of Section 52A, NDPS Act as well as Section 102 Customs Act was made. Also, compliance of Standing Order Nos 1/88 1/89 was duly made as well. In any case, these contentions may be raised at the stage of trial and have no bearing on grant/refusal of bail. 14. It was further submitted that since the contraband seized was of commercial quantity, rigours of Section 37, NDPS Act will be triggered. At this stage, the twin conditions imposed by Section 37, NDPS Act cannot be said to have been satisfied as there is abundant evidence to have hold a prima facie view which does not exonerate the applicant from guilt of committing the alleged offences. 15. In support of his arguments, SPP for Customs placed reliance upon the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for pre-trial disposal. The sequential flow, therefore, in essence, is as under: i. Drugs seized shall be classified, weighed and sampled at the time of seizure; ii. Seized packages shall be carefully numbered and kept for sampling; iii. Samples shall be drawn on the spot of recovery, in duplicate, in presence of panchs and the person accused. Mention of this should be made in the panchnama drawn on the spot; iv. The quantity drawn from each sample shall be not less than 5 g (24 g in cases of opium, ganja, and charas); v. The seized drugs from the packages/containers shall be well-mixed to make it homogenous before the sample is drawn; vi. In case the seizure is from a single packet, one sample in duplicate will be drawn; if more packages/containers, then one sample will be taken from each of them. If many packages are seized of identical size and weight, they may be bunched in lot of 10 packages/containers (in case of ganja and hashish) in lots of 40 packages/containers; vii. Post the sampling it shall be secured and marked. They shall be dispatched to the FSLs. The residual quantity of the drugs would be stored in safes and vaults with the prescribed agencies after following due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt to the genuineness of the recovery and importing a suspicion of false implication and planting of the contraband, the Court may be inclined to consider grant of bail. There is no doubt that the Court has also to consider the quantity of the recovery and the nature of the contraband, and the circumstances in which it was seized, each of which could potentially work to the benefit of the accused for the purposes of bail. Essentially, all these elements, factors, situations, are to be weighed and examined in the crucible of Section 37 parameters. The said provision requires a Court to be satisfied the accused is not guilty of the offence alleged, such satisfaction being based on reasonable grounds . Likelihood of committing an offence while on bail is the other parameter. There is a distinction therefore, in an assessment made, post-conviction (in an appeal) where the complete evidence is before Court, and that at the stage of bail, when the material before Court is that provided by the prosecution. A thoroughbred examination can happen only post-trial, post-conviction in an appeal. At the stage of bail, a subjective analysis based on some objective criteria can be made which wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the discussion therein as follows: 24. The NDPS Act has been enacted, inter alia, to implement International Conventions relating to narcotic drugs and psychotropic substances to which India has been a party and also to implement the Constitutional policy enshrined in Article 47 of the Constitution of India, which casts a duty upon the State to improve public health and also to prohibit consumption, except for medicinal purposes, of drugs which are injurious to health. (emphasis added) 27. The NDPS Act attempts to balance equities in matters of personal liberty, conduct of fair trial, and the Herculean task of discharging the duty to curb the menace of drugs running rampant in this country. Deliberating upon the inclusion of Section 37 in the NDPS Act, the Apex Court in Union of India v. Ram Samujh (1999) 9 SCC 429 elaborated upon the legislative intent of the NDPS Act in the following manner: 6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus: Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. As we have now rejected the plea of the defence holding that the penal provisions of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in column 3 of the table under the notification, the sentence of 10 years rigorous imprisonment and the fine of Rs 1,00,000 with the default clause as modified by the High Court does not call for interference. (emphasis added) 29. To grant bail under the regime of NDPS Act in situations of seizure of commercial quantity of contraband, rigours of Section 37, NDPS Act apply; bare text of the provision reads as under: 37. Offences to be cognizable and non-bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. (emphasis added) 31. Thereafter, another coordinate Bench of this Court in Somdutt Singh @ Shivam (supra) distinguished the judgment in the case of Kashif (supra) on the aspect that no recovery was effected from the possession or at the instance of the applicants therein and thus, embargo of Section 37 was not attracted. While dismissing the bail application, Court in Somdutt Singh @ Shivam (supra) observed as follows: 16. Furthermore, recently a Co-ordinate Bench of this Court in Surender Kumar (supra) has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis added) 34. Although in Sovraj (supra), 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. Same do not form basis of applicant s contentions herein and thus, application of law in this case will have to be done in the facts and circumstances of this case. In the present matter, at this stage, this Court is of the opinion that the applicant has failed to overcome the threshold as prescribed by Section 37 of the NDPS Act. Defective Notice 35. Objections as regards defective notice under Section 50, NDPS Act or Section 102 Customs Act may not be finally relevant since nothing was revealed in a personal search of the accused. Provisions of Section 50 need to be complied with only in cases of personal search and not where it is of the bag of the person being searched. Relevant portions of Ranjan Kumar Chadha (supra) are extracted as under: 93. Thus, in Pawan Kumar (supra) the larger Bench while answering the reference in no uncertain terms stated that a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which the sign is procured of the accused. This practice may not be totally correct considering that Section 50 requires options to be given to the person being searched; in fact an affirmative option is to be exercised for the search being conducted before the nearest Gazetted Officer/Magistrate. Having provided a pre-typed proforma, with the less desirable option and getting it endorsed by the signatures of the person being searched, that too in the heat of the moment of the raid/seizure, is a practice which is to be deprecated. A proforma typed notice may ideally have both the options i.e. first that the person requires the personal search to be done before a Gazetted Officer/Magistrate; and second that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female). 38. Customs is well-advised to alter their proforma notices to introduce the above options in consonance with requirements of Section 50 as sanctified by decisions of Supreme Court inter alia in Ranjan Kumar Chadha (supra). In this regard, following paragraphs of the said judgment have been reproduced below for reference: 64. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer. This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively. 66. ..(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (emphasis added) Delay in Trial/Prolonged Incarceration 39. The plea of delay in trial and prolonged incarceration, though being recognized by the Supreme Court as an inalienable right under Article 21 of the Constitution of India cannot have a formulaic application. There have been various decisions of the Supreme Court on the aspect of delay in trial, the relevant paragraphs of the same have been extracted as under: i. Rabi Prakash v State of Odisha 2023 SCC OnLine SC 1109 where a recovery of 247 kgs of ganja was made and the petitioner had been in custody for more than three and a half years, with n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as yet to commence, the Supreme Court while granting bail noted as under: 5. The above would show that the trial is yet to commence in the matter(s) and in the meantime, petitioners have been in custody for long. The State counsel submits that there are no known criminal antecedents against the two accused. 40. Assessment of these decisions of the Supreme Court cited above shows that bail has been granted in cases having differing facts, some with incarceration of more than 3 years, and some in cases of seizure of ganja. The assessment, therefore, on prolonged custody and delay in trial will depend of facts and circumstances of the case. Whether 2 or 3 years or more, or any other time period is prolonged , is clearly left to the assessment of the Court. 41. In this case, the petitioner has undergone 2.5 years of custody and the trial is progressing. An attempt may be made by the Trial Court to expedite the trial. In the event, that the trial does not proceed ahead expeditiously, needless to state that the applicant will have the right to approach the Court at a subsequent stage. 42. In this regard, it is to be noted that in the decision of the Supreme Court in Supreme Court Legal A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
