Case Laws
Acts
Notifications
Circulars
Classification
Forms
Manuals
Articles
News
D. Forum
Highlights
Notes
🚨 Important Update for Our Users
We are transitioning to our new and improved portal - www.taxtmi.com - for a better experience.
⚠️ This portal will be discontinued on 31-07-2025
If you encounter any issues or problems while using the new portal,
please
let us know via our feedback form
so we can address them promptly.
Home
2023 (5) TMI 1383 - HC - Indian LawsDelay in filing application under Section 52A of the NDPS Act - what is a reasonable time to make an application to the Magistrate under section 52A NDPS and the effect of delay if any? - HELD THAT - Section 52A NDPS does not give a time frame within which application has to be made for collection of sample to the magistrate. The time frame is provided in Standing Order 1/88 and that too only in the context of sending the sample to FSL. In Mohanlal 2016 (5) TMI 500 - SUPREME COURT the Hon ble Supreme Court in para 19 has opined that The scheme of the Act in general and Section 52A in particular does not brook any delay in the matter of making of an application or the 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 - What is reasonable has been left open by the Apex Court in the said judgment. It cannot be the intent of the legislature that since no time limit is mentioned in the statute the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance. Thus a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS construes that a reasonable time must be read into section 52A(2) for making an application for drawing the sample and certification before the Magistrate. In the present case the sample was kept in the custody of the prosecuting agency for more than one and a half month thus raising doubt with regards to tampering of the same. The application for sample collection under section 52A is not a technical application wherein elaborate reasons principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case the same has not been moved the reasons for delay must be explained by the authorities. The applicant has been in custody since 07.03.2022 and more than a year has passed since then. No further custodial interrogation of the Applicant is required. No recovery was made from the Applicant or at his instance. Therefore the embargo of Section 37 NDPS is not applicable on the Applicant - The triple test i.e. a) flight risk; b) tampering with evidence and c) influencing the witnesses can be taken care of by imposing stringent bail conditions. The application is allowed and the applicant is granted bail subject to fulfilment of terms and conditions - Bail application allowed.
|