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TMI Blog2024 (10) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... be arriving from Addis Ababa, Ethiopia to Terminal-3, Indira Gandhi International Airport, New Delhi by Flight ET 688 and would be carrying narcotics, pursuant to which, two panch witnesses were called by the Customs Authorities. At about 12:20 hours, applicant was intercepted by matching her passport number and date of birth after she crossed the Green Channel and was asked, in the presence of the panch witnesses, whether she was carrying any narcotic substances on her person or in her baggage to which, she replied in the negative. 3. Thereafter, notice under Section 50, NDPS Act was issued as well as another notice under Section 102 of the Customs Act, 1962 ["Customs Act"] was served upon the applicant; she was apprised of the fact that her personal search as well as baggage search could be conducted in the presence of a Gazetted Officer or a Magistrate to which, applicant gave her consent to be searched by any lady Customs Officer, and her baggage can be searched by any Customs Officer. 4. The applicant was directed to the Customs Preventive Room and her personal search was done by the lady Customs Officer as well as search of her handbag was done which revealed three unsealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, NDPS Act: It was contended that a defective notice which was issued to the applicant under Section 50, NDPS Act as the same did not indicating any 'receiving' rendered by applicant prior to her search. Said notice served on the applicant is extracted as under: 11. Defective Notice under Section 102, Customs Act: It was also contended that the notice issued to the applicant under Section 102, Customs Act was defective, in that it did not indicate the applicant's 'receiving' prior to her search. Said notice served on the applicant is extracted as under: 12. Delay in Trial: It was submitted that the applicant was arrested on 12th December 2021 and till date, only 2 witnesses out of 16 witnesses has been examined, in light of which, it is likely that the trial will take an excruciatingly long time during which, the applicant claiming innocence cannot be made to undergo prolonged incarceration. 13. In support of their arguments, counsel for applicant relied on the following judicial precedents: a. Kashif v. Narcotics Control Bureau 2023 SCC OnLine Del 288; b. Vinod Nagar v. Narcotics Control Bureau 2024:DHC:1244; c. Mangilal v. State of Madhya Pradesh 2023 SCC OnLine SC 862; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties and perused the material placed on record. At the outset, reference may be made to the substance that was seized from the instance of the applicant i.e. Methaqualone which is a psychotropic substance, as envisaged in the NDPS Act. Psychotropic substances are defined in Section 2(xxiii) of the NDPS Act and included in the Schedule to the NDPS Act: "(xxiii) "Psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;" 18. The United Nations Office on Drugs and Crime Manual on "Recommended Methods for the Identification and Analysis of Methaqualone/Mecloqualone"1 explains the substance Methaqualone as a quinazolone derivative first synthesized in 1951, and used medically as a hypnotic for the short-term treatment of insomnia. It is also rampantly used as a recreational drug as it acts as a central nervous system depressant in a manner not unlike barbiturates. It was commonly marketed as Quaaludes and Mandrax (containing Methaqualone base 250 mg, and diphenhydramine hydrochloride 25 mg) in the 1960s and 1970s; also, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 22. In respect of this objection, it is noted that SO 1/89 does not prescribe specific time-period for moving said application. SO 1/88 requires samples to be dispatched to the FSL not later than 72 hours. 23. The Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 traversed the international background and need and necessity to enact the NDPS quite succinctly. For the sake of brevity, a short portion is being extracting to capture the essence of the discussion therein as follows: "24. The NDPS Act has been enacted, inter alia, to implement International Conventions relating to narcotic drugs and psychotropic substances to which India has been a party and also to implement the Constitutional policy enshrined in Article 47 of the Constitution of India, which casts a duty upon the State to improve public health and also to prohibit consumption, except for medicinal purposes, of drugs which are injurious to health." (emphasis added) 24. The NDPS Act attempts to strike a balance between personal liberty, conduct of fair trial, and discharging the duty to curb the menace of drugs running rampant in this country. Deliberating upon the inclusion of Section 37 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fects of these activities, also referred to the decision of the Apex Court in Durand Didier v. Chief Secy., Union Territory of Goa (1990) 1 SCC 95; relevant portions of Duran Didier (supra) are reproduced as under: "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. As we have now rejected the plea of the defence holding that the penal provisions of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) that the application under 52A has to be made without any undue delay, there should not be any reason for delaying the filing of application. 27. 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. Reasonable time under section 52A 28. What is reasonable time depends on the facts and circumstances of each case. However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame." (emphasis added) 28. Thereafter, another coordinate Bench of this Court in Somdutt Singh @ Shivam (supra) distinguished the judgment in the case of Kashif (supra) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atal. 58. As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time." (emphasis added) 31. Although in Sovraj (supra), this Court had enlarged the accused on bail, same was done inter alia on the issue of absence of independent witnesses and lack of photography or videography of the recovery. Same do not form basis of applicant's contentions herein and thus, application of law in this case will have to be done in the facts and circumstances of this case. In the present matter, at this stage, this Court is of the opinion that the applicant has failed to overcome the threshold as prescribed by Section 37, NDPS Act. Defective Notice 32. As far as the issue of proforma notice is concerned, it may be noted that provision of Section 50, NDPS Act needs to be complied with only in cases of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that Section 50 would have no application. ... 103. Accordingly, Section 50 was read to be understood as applicable only to the personal search of a person and that would not extend to search of a vehicle or a container or a bag." (emphasis added) 33. As noted by the Supreme Court in State of Himachal Pradesh v Pawan Kumar 2005 4 SCC 350, the search was both of applicant as well as of the luggage she was carrying, but since nothing was recovered from her personal search, Section 50 would not apply. 34. However, a note of caution is to be made regarding these proforma notices as reproduced in paragraphs 10 and 11 above. Though the signatures of the accused are there of having "received" the notice, with the signatures of the witnesses as well, there is a pre-typed no objection for search to be conducted by a lady customs officer under which the sign is procured of the accused. This practice may not be totally correct considering that Section 50 requires options to be given to the person being searched; in fact an affirmative option is to be exercised for the search being conducted before the nearest Gazetted Officer/Magistrate. Having provided a pre-typed proforma, with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with at this stage, more so when the trial is yet to commence though the charges have been framed." iii. In Man Mandal & Anr. v State of West Bengal 2023 SCC OnLine SC 1868 where the seizure was commercial in nature and the petitioner had been incarcerated for about two years and there was no hope of the trial concluding soon, the Supreme Court while granting bail stated as under: "6. Taking into consideration the fact that the petitioners have been incarcerated for a period of almost two years and the trial is not likely to be taken up for hearing in the immediate near future, we are inclined to grant bail to the petitioners." iv. In Badsha Sk. v State of West Bengal 2023 SCC OnLine SC 1867 where the seizure was of 100 bottles of Phensedyl Cough Syrup (100 ml. each), containing Codeine Phosphate, the petitioner had been in custody for about 2 years 4 months and the trial was yet to commence, the Supreme Court while granting bail noted as under: "5. The above would show that the trial is yet to commence in the matter(s) and in the meantime, petitioners have been in custody for long. The State counsel submits that there are no known criminal antecedents against the two accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental right visualised by Article 21. We regret to note that despite it all, there has not been visible improvement on this front." (emphasis added) 40. In light of the above discussion, taking into consideration four times the commercial quantity of contraband seized from the instance of the applicant, there being no prejudicial infirmity in the process adopted by the respondent, rigours of Section 37, NDPS Act, and progressing trial, this Court is unable to reach a prima facie conclusion that applicant is not guilty of the offences and is unlikely to commit the same if enlarged on bail. The threshold of Section 37, NDPS Act not having been crossed, the application for bail cannot be granted. 41. Bail application stands dismissed. 42. Needless to state that any observations made herein are only for the purpose of deciding the present bail application and should not be read as a comment upon the merits of the case. 43. Judgment be uploaded on the website of this Court. ------------------ Notes: 1. United Nations Office on Drugs and Crime (2010) Recommended methods for the identification and analysis of methaqualone/mecloqualone. United Nations Office on Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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