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TMI Blog2023 (12) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... 1548 - DELHI HIGH COURT] 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 application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines. There is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act - In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act. Considering the facts and circumstances including the fact that commercial quantitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Manish Gupta, he tendered his voluntary statement wherein he stated that out of the 20,000 tablets that he had purchased from Bhanu Pratap Singh, he had booked 5,000 tablets which were seized from DTDC, New Delhi and the remaining 15,000 tablets were sold to one Somdutt Singh. Manish Gupta also endorsed print outs of his conversations with Somdutt Singh and disclosed his involvement in the illegal trade in psychotropic substances. Consequently, Manish Gupta was arrested on 5th April, 2021. 2.5 Upon further investigation, Somdutt Singh was served with a notice under Section 67 of the NDPS Act, in pursuance of which he tendered his voluntary statement on 7th April, 2021, wherein he disclosed that a huge quantity of psychotropic substances was lying at his rented apartment situated at F4-19, 4th Floor, Pocket-2, Sector-2, Narela, Delhi (hereinafter Narela Flat ). On 7th April, 2021, the NCB team, accompanied by the applicant Somdutt Singh reached the aforesaid apartment and upon search of the same recovered 12,250 Tramadol tablets, 1500 Zolpidem Tablets, 400 Diazepam Tablets, 1.286 kg loose Alprazolam tablets and 2000 Clonazepam tablets, which constitute commercial quantity. 2.6 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Benches in Kashif v. Narcotics Control Bureau, (2023) SCC OnLine Del 2881; Sarvothaman Guhan @ Saarvo v. Narcotics Control Bureau, 2023 SCC OnLine Del 5643 and Tamir Ali v. Narcotics Control Bureau, 2023 SCC OnLine Del 3015. V. The rigours of Section 37 of the NDPS Act are not applicable as there has been no recovery made from the applicant in the present case. VI. No CDR records between the petitioner and the other co-accused have been produced and the alleged WhatsApp chats/conversations are not sufficient material to link the petitioner with the trafficking of the contraband. Reliance is placed on the judgment of the Supreme Court in Bharat Chaudhary v. Union of India, 2021 SCC OnLine SC 1235. VII. Arun Kumar @ Varun, who is a co-accused in the present case has been granted regular bail by this Court vide order dated 25th April, 2023 in BAIL APPLN. 1700/2022. 5. Per contra, learned Senior Standing Counsel appearing on behalf of the NCB has opposed the present bail application by making the following submissions: I. The applicant was directly involved in procuring and sending commercial quantity of psychotropic substances along with other coaccused persons. Recoveries were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disclosures made by the applicant in his statement under Section 67 of the NDPS Act. In view of Section 27 of the Indian Evidence Act, 1872, any recovery made pursuant to the disclosure made by an accused person is admissible in law. 8. There are also WhatsApp chats recovered from the mobile phone of the applicant that show transactions between the applicant and the other coaccused persons. It is stated that the requisite certificate under Section 65B of the Indian Evidence Act, 1872, has been filed before the Trial Court. The judgment of the Supreme Court in Bharat Choudhary (supra) would not come in aid of the applicant as no recovery was made from the petitioner therein and he was arrested on the disclosure made by the other co-accused persons. 9. Insofar as non-compliance of Section 42 of the NDPS Act is concerned, the same would have to be tested at the time of trial, as held by the judgment of the Co-ordinate Bench in Pravin Khatri (supra). 10. The applicant cannot claim parity with the co-accused Arun Kumar @ Varun as in the case of Arun Kumar @ Varun, there was no recovery made from him or pursuant to his disclosure. The case against Arun Kumar @ Varun was completely ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra) . We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. 13. A reading of the aforesaid dicta of the Supreme Court makes it clear that Section 52-A of the NDPS Act prescribes that upon seizure of psychotropic substances, the officer shall approach the Magistrate, under whose presence and supervision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be a true representative sample of the contraband recovered, can be answered by the chemical analyst, who analyses the sample and gives his/her opinion. Learned Special Judge during the course of the trial will have the advantage of the testimony of the chemical analyst as well as the production of contraband seized in the Court. It is pertinent to note that the case property is still there for any further analysis if so required. Therefore, it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed. 15. Similarly, a Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi), 2021 SCC OnLine Del 3619, refused the grant of bail in a case involving commercial quantity of cocaine despite the sampling not being carried out in the presence of a Magistrate. The relevant observations in this regard are set out below: 13. By this petition, petitioner seeks bail on the ground of noncompliance of Section 52A of the NDPS Act, however, in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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