2023 (3) TMI 1398 - HC - Indian Laws

Smuggling - non compliance of Section 52A of NDPS Act - HELD THAT - Admittedly there was confusion in the procedure of drawing samples and as per ARVIND YADAV VERSUS GOVT. OF NCT OF DELHI 2022 (3) TMI 1551 - SC ORDER even if samples were drawn at the spot would not vitiate the trial hence any violation thereof could never be the sole basis for grant of bail. Such discrepancy in rules was even noted by the Hon ble Supreme Court in UNION OF INDIA VERSUS MOHANLAL 2016 (5) TMI 500 - SUPREME COURT and accordingly fresh Rules were notified vide gazette notification dated 23.12.2022 thus the compliance of Standing Order 01/1989 prior to the notification perse would not be a ground to grant bail. Hence purely on this ground bail not granted to the petitioner - petition dismissed.

Summary

Issues Involved:
The only issue raised is non-compliance of Section 52A of NDPS Act.

Comprehensive Details:
The learned counsel cited various judgments to support the argument that non-compliance of Section 52A vitiates the search and seizure process. However, a previous case highlighted that the trial does not stand vitiated if samples are drawn at the spot without a Magistrate, as the nature of contraband can be ascertained during trial. The confusion between Standing Order 01/1989 and Section 52A was noted, leading to a directive for the Central Government to re-examine the matter.

The Hon'ble Supreme Court upheld the decision that drawing samples at the spot without a Magistrate does not vitiate the trial. A conflict between the statutory provision and the standing order was evident, prompting the Central Government to issue a Gazette Notification clarifying the procedure for sampling and testing of seized material. The compliance with the Standing Order prior to the notification was not considered a ground for granting bail.

In conclusion, the petition was dismissed as the compliance with the Standing Order prior to the notification was not sufficient grounds for granting bail. The confusion in the procedure of drawing samples was noted, and the compliance with the new Rules post-notification was emphasized.