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2025 (1) TMI 1466

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..... iling the reasons for the protracted trial proceedings. The updated Nominal Roll, dated 07th January, 2025, confirms that the Applicant has been in custody for 3 years, 8 months, and 18 days. This prolonged detention raises significant concerns about the balance between the rigours of Section 37 and the constitutional guarantee of a fair and timely trial. The report of the Trial Court indicates that the delay in the trial proceedings cannot be attributed to any fault of the Applicant. Instead, the matter has been adjourned on multiple occasions due to the non-appearance of prosecution witnesses. The Special Judge has observed in the report that the Special Public Prosecutor for Customs, appointed in this case, is available only on Wednesdays, Fridays, and Saturdays, and hearing dates are being scheduled to accommodate this limitation. Thus, it cannot be said that the delay in Trial in the present case can, in any way, be attributed to the Applicant who has been in incarceration for a period of almost 4 years. The next date of hearing is scheduled for 19th February, 2025, making it evident that the trial's conclusion is not foreseeable in the near future. The Court must strike a b .....

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..... . QR 1366 dated 18th April, 2021 from O.R. Tambo International Airport Johannesburg to Doha and a further connecting flight from Doha to Delhi bearing No. QR 578, on 19th April, 2021. She was seen carrying one pink coloured checked-in trolly bag bearing Tag No. 015747436, one hand bag and one bagpack. 2.2. On the basis of Airport security intelligence, the Officers of Customs at IGI Airport intercepted the Petitioner after she crossed the Green Channel and was approaching the Exit Gate and asked her whether she was carrying any contraband, prohibited or dutiable goods, to which she replied in the negative. To verify the same, she was asked to get her bags scanned through X-Ray Baggage Inspection Machine, during which, some suspicious images were noticed in the pink checked in trolly bag. She was then asked to undergo the Door Frame Metal Detector examination; however, no beep sound was heard, indicating that she was not carrying or concealing any metallic contraband items on her person or inside her body cavities. 2.3. Subsequently, the Applicant, along with her baggage was taken to the Customs Preventive Room at the International Arrival Hall of Terminal-3, IGI Airport for furth .....

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..... tting the recovery of contraband substance and her involvement in the case, apart from other incriminating facts. Thereafter, on the same day - i.e., 19th April, 2021, the Applicant was placed under arrest and intimation of her arrest was communicated to her family though a phone call, as well as to the Ministry of External Affairs, New Delhi vide letter dated 20th April, 2021. 2.8. For drawl of samples of the seized narcotics substance, an application under Section 52A of the NDPS Act was filed before the concerned Magistrate, which was taken up for hearing on 18th June, 2021. During the proceedings on the said date, samples were drawn before the Magistrate as per the details mentioned in the order dated 18th June, 2021. The Panchnama dated 19th April, 2021 was also produced before the Magistrate and the same was certified to the effect that the particulars, sealing, weight and colour etc. of the case property were correctly mentioned in the said Panchnama. All proceedings were photographed and attested by the Magistrate as per Section 52A of the NDPS Act. 2.9. Thereafter, the sample mark SO-1 along with Test memo were sent to the Central Revenue Control Laboratory by the Deputy .....

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..... repared and representative samples from each container/package can be drawn. 5. Mr. Aggarwal argues that as per the chargesheet, it is clear that the Investigating Officer ["IO"] has neither filed the Test Memos which are required in triplicate for conducting the test, nor have they mentioned how many tests were conducted using the Field Kit, the final colour of the said test result/results, or the weight of the alleged seized individual packets. He argues that these omissions constitute a violation of the established guidelines for sampling under the NDPS Act, thereby casting serious doubt on the validity of the recovery. Such procedural lapses, he submits, accrue in favour of the Applicant and entitle her to bail. 6. Additionally, Mr. Aggarwal submits that there was a substantial delay of two months in filing the application under Section 52A of the NDPS Act for the drawing of samples before the Magistrate, which was eventually filed on 18th June, 2021. He relies on the Standing Order 1/88, which mandates the drawing of samples within 72 hours of seizure, followed by their prompt dispatch to the laboratory for testing. He further points out that only one sample of the contraban .....

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..... controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referre .....

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..... s/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." 11. Over the years the Courts have delved into the question of sampling and effects of non-compliance with notified procedure on many occasions, starting with the case of Gaunter Edwin Kircher v. State of Goa (1933) 3 SCC 145. The jurisprudence developed over the years is that the Standing Order 1/88 notified vide notification dated 15th August, 1988, which lays down the procedure for drug sampling under t .....

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..... ore the Special Judge (NDPS) remains at the stage of prosecution evidence. Acknowledging these delays, the Court called for an updated Nominal Roll of the Applicant and a Status Report from the Trial Court detailing the reasons for the protracted trial proceedings. The updated Nominal Roll, dated 07th January, 2025, confirms that the Applicant has been in custody for 3 years, 8 months, and 18 days. This prolonged detention raises significant concerns about the balance between the rigours of Section 37 and the constitutional guarantee of a fair and timely trial. 14. As per the report submitted by the Trial Court, the chargesheet in the present case was filed on 16th October, 2021, and charges were framed on 17th December, 2021. A perusal of the orders passed by the Special Judge reveals that the matter was first listed for prosecution evidence on 4th February, 2022. However, by 17th May, 2024, only two prosecution witnesses (PW-1 and PW-2) had been examined, and the trial remains at the stage of prosecution evidence. The prosecution has cited a total of 13 witnesses, of whom only two have been examined thus far, while the examination of the third witness is still ongoing. 15. The .....

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..... of speedy trial is amalgamated into the Article 21 as an essential part of the fundamental right to life and liberty, guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed at the time of the arrest of the accused and consequent incarceration which continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result due to impermissible and avoidable delay since the time of the commission of the offence till the criminal proceedings consummate into a finality, could be averted. The speedy trial, early hearing and quick disposal are sine qua non of criminal jurisprudence. The overcrowded Court-dockets, the heavy volume of work and the resultant pressure on the prosecution and the Police, indubitably keeps the entire criminal jurisprudential mechanism under stress and strain. However, this cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time. It does not serve any credit to the criminal justice system, rather it makes for a sad state of affairs. The guarantee of a speedy trial is intended to a .....

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..... cannot turn Nelson's eve to the protracted delays and systematic inefficiency that frustrate this legislative purpose. A Court of law is duty-bound to ensure that it does not become complicit in violation of an individual's fundamental rights, notwithstanding anything contained in a statute. While dealing with bail petition in a case governed by the rigours of Section 37 of the NDPS Act, 1985, the Court must strike a judicious balance between the legislative intent to curb the menace of drugs and the sacrosanct right of the accused to a fair and expeditious trial. Prolonged incarceration, without justifiable cause, risks transforming pre-trial detention into punitive imprisonment, an outcome antithetical to the principle of justice and equity. Ergo, the unequivocal inference is that where the trial has failed to conclude within a reasonable time, resulting in prolonged incarceration, it militates against the precious fundamental rights of life and liberty granted under the law and, as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act, 1985 ought to be considered as per facts of a given case. In other words, grant of bail .....

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