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TMI Blog2024 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act. It is significant to note that as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc. for the possession of which he failed to account satisfactorily. Therefore, unless such statutory presumption is rebutted by the accused during the course of trial, there would be a prima facie presumption that the accused had committed the offence under the Act, if he is found to have possessed the contraband drug and substance, and if he fails to account satisfactorily, as contemplated in the said provision of Section 54. In case of State of H.P. vs. Pirthi Chand and Another [ 1995 (11) TMI 433 - SUPREME COURT] this Court following the observations made by the Constitution Bench in Pooran Mal case [ 1973 (12) TMI 2 - SUPREME COURT] held that ' It would be seen that the organised traffic in contraband generate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh consideration on merits - appeal allowed by way of remand. - HON'BLE MS. JUSTICE BELA M. TRIVEDI And HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA For the Petitioner : Mr. Tushar Mehta, Solicitor General Mr. Arvind Kumar Sharma , AOR For the Respondent : Mr. Akshay Bhandari, Adv. Mr. Ashish Batra , AOR JUDGMENT BELA M. TRIVEDI , J. 1. Leave granted. 2. The instant Appeal arises out of the impugned Order dated 18.05.2023 passed by the High Court of Delhi at New Delhi in Bail Application No. 253 of 2023, granting bail to the respondent. It assumes importance as the said Bail Application has been allowed by the High Court solely on the ground of belated compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ), misinterpreting the said provision, and without recording the findings as mandated in Section 37 of the said Act. Since the impugned order involving seminal issue on the interpretation of Section 52A of the said Act is likely to have wide repercussions, we deem it proper to delve into the same in little greater depth. 3. PREFATORY FACTS : (i) As per the case of the prosecution, on 24.02.2022 an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Judge, NDPS Act, Patiala House Courts, against the Respondent - Kashif and six other accused, for the offences punishable under Section 8, 22(c), 23(c) and 29 of the NDPS Act. 4. The Respondent - Accused filed the Bail Application being No. 253/2023 directly before the High Court of Delhi, which allowed the same holding inter alia that there was non-compliance of Section 51A within reasonable time, which gave rise to apprehension that sample could have been tempered with, and that in case of wrongly drawn samples, the benefit of doubt had to accrue to the accused. As transpiring from the impugned order, the learned counsel appearing for the Respondent - Accused had restricted his arguments only to the issue of violation of the Standing Order No.1 of 88 and delay in filing the application before the Magistrate for drawing the sample under Section 52A of NDPS Act. The High Court also therefore decided the Bail application, confining itself to the issue whether the application under Section 52A was made within reasonable time and the effect of delay, if any. 5. We have heard learned Solicitor General of India, Mr. Tushar Mehta and Mr. Akshay Bhandari, learned counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which led to enactment of the NDPS Act. As observed hereinabove, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in the Narcotic Drugs and Psychotropic Substances Act, 1985 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of the NDPS Act are required to be interpreted keeping in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and Preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is uncalled for. 10. Similarly, recently a three-Judge Bench in NCB vs. Mohit Aggarwal (2022) 18 SCC 374 , considering the earlier judgments on the parameters of bail available under Section 37 of the said Act held that: The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. 11. So far as the facts of the present case are concerned, it appears that a complaint case has been filed by the NCB against the respondent and six others before the Special Court, for the offences under Section 8, 22(c), 23(c) and 29 of the NDPS Act. The respondent-accused filed the bail application directly in the High Court without first approaching the Special Court, and curiously the High Court without considering as to whether the twin conditions mentioned in clause (b) sub-section (1) of Section 37 were fulfilled or not, concluded without any material on record that Section 37 was not attracted as there was non-compliance of Section 52A of the said Act within reasonable time. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. POSITION PRIOR TO INSERTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilized. 1.22. Disposal of Test Memo As soon as the test result in original or duplicate or both test memos are received, the same will be filled in the Court, trying the case, alongwith, chargesheet/complaint by the Investigating officer. He will keep an attested copy of the same in his case file. 1.23. Disposal of Remnant sample/duplicate sample and the drug At present, the remnant sample/duplicate sample and seized narcotic drugs and psychotropic substances can be disposed of after the proceedings of prosecution is over or by obtaining an order from such court under Section 110 of the Customs Act, 1962 and/or 451 of Cr.P.C. While obtaining the order of the court under the aforesaid section it is necessary that specific order in respect of the remnant sample/ duplicate sample is also obtained. After such order has been obtained, the drug or substance along with the samples including remnants shall be disposed of in the manner prescribed. Please acknowledge the receipt of the standing order. 14. Thereafter, recognizing the importance of dispatch, transit, receipt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of after their seizure, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space. Clause 2.1 of the said Standing Order No.1 of 1989 stated that all drugs shall be properly classified, carefully weighed and sampled on the spot of seizure. The said standing order also provided about the drawal of samples on the spot of recovery, quantity to be drawn for sampling, etc. It also provided a detailed procedure with regard to the method of drawal of representative samples, storage of samples, dispatch of samples, preparation of inventory, etc., and also provided for an early disposal of drugs and other articles by having recourse to the provisions of subsection (2) of Section 52A of the Act. The relevant part of the Standing Order No. 1/89 reads as under: - SECTION II GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC. 3.1. Preparation of inventory After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the panchnama. Original wrappers shall also be preserved for evidentiary purposes. SECTION III RECEIPT OF DRUGS IN GODOWNS AND PROCEDURE 3.2. Custody of drugs in godowns storage procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the identity of the aforesaid drugs in any proceedings under the Act and make an application to any magistrate for the purpose of: (a) Certifying the correctness of the inventory so prepared; or (b) Taking, in the presence of such magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such magistrate, and certifying the correctness of any list of samples so drawn. 4.1. Magistrate to allow application Where an application is made under sub section (2) of Section 52A of the Act, the magistrate shall, as soon as may be, allow the application. 4.2. Courts to treat documents and list of samples certified by magistrate as primary evidence. Notwithstanding anything contained in the Indian Evidence Act, 1872 (1of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act shall treat the inventory, the photographs, or narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) ibid and certified by the magistrate, as primary evidence in respect of such offence. 4.3. Grounds to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication repealed by sub-rule (1), shall in so far as it is not inconsistent with the provisions of the said Rules, be deemed to have been done or taken under the corresponding provision of the said Rules. 20. Now, so far as Section 52A is concerned, the language employed therein itself is very clear that the said provision was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and other relevant considerations. Apart from the plain language used in the said section, its Heading also makes it clear that the said provision was inserted for the Disposal of the seized narcotic drugs and psychotropic substances. As per the well settled rule of interpretation, the Section Heading or Marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The Section Heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inventory so prepared; or (b) taking, in presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Sub-section (3) requires that an application made under sub-section (2), should be allowed by the Magistrate as soon as may be, and sub-section (4) thereof states that such inventory, photographs and the list of samples so drawn, if any, under sub-section (2) and certified by the Magistrate shall be treated as the primary evidence in respect of the offence under the Act. 23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub-section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under subsection (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 52A is held to be vitiating the trial or entitling the accused to be released on bail, though he is found to have possessed the contraband substance, and even if the statutory presumption is not rebutted by him. Such could not be the intention of the legislature. 26. It is further pertinent to note that as per the settled legal position even the evidence collected by an illegal search or seizure could not be excluded or discarded. Whether the evidence collected by an illegal search or seizure is admissible or not has been considered by this Court in a series of decisions and one of the earliest decisions is the decision of the Constitution Bench in case of Pooran Mal Vs. Director of Inspection (Investigation) New Delhi and Others (supra). It was observed therein that: 24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. 27. Of course, the subsequent Constitution Bench in case of State of Punjab vs. Baldev Singh (1999) 6 SCC 172 , while considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure is not liable to be shut out. Search and seizure is not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures. 5. It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India [(2002) 4 SCC 380] this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention. 31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be overlooked merely because some lapse or non-compliance is found of Section 52A of the Act. 34. In our opinion reliance placed by the High Court on the decision of this Court in Union of India Vs. Mohanlal and Another ( 2016 ) 3 SCC 379 , is thoroughly misplaced. In the said case, the issue of pilferage of contraband was the main issue. The Court after noticing the non-compliance of the procedure laid down in the Standing Order No. 1 of 89 dated 13.06.1989, and the possibility of the pilferage of contraband goods and their return to the market place for circulation, had appointed an amicus curiae for making a realistic review of the procedure for search, disposal or destruction of the narcotics and remedial steps that need to be taken to plug the loopholes, if any. The Court, thereafter, had raised the queries with regard to the seizure, storage, disposal/destruction and also with regard to the judicial supervision in respect of the seized narcotic drugs and psychotropic substances. The prime focal in case of Mohanlal was the disposal of seized contraband goods as contemplated in Section 52A. Though it held that the process of drawing samples has to be done in presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be reiterated that every law is designed to further ends of justice and not to frustrate it on mere technicalities. If the language of a Statute in its ordinary meaning and grammatical construction leads a manifest contradiction of the apparent purpose of the enactment, a construction may be put upon it which modifies the meaning of the words, or even the structure of the sentence. It is equally settled legal position that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman s unskillfulness or ignorance of the law. In Maxwell on Interpretation of Statutes, Tenth Edition at page 229, the following passage is found : - Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act. 40. The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law. 41. Since, we are remanding the matter for fresh consideration on merits, we are extending the period of bail granted to the respondent for four w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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