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TMI Blog2024 (10) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11th January 2022, applicant arrived at Terminal-3, Indira Gandhi International Airport, New Delhi ["T- 3 IGI Airport"] by Flight G9 721 from Entebbe, Uganda to Delhi via Sharjah, United Arab Emirates. Applicant was carrying a red-coloured trolley bag and a leather handbag. On arrival, the applicant was asked to get her baggage scanned through X-Ray baggage inspection machine as also to pass through the Door Frame Metal Detector; nothing objectionable was found on her person. During X-ray check the applicant's baggage, certain suspicious images were noticed pursuant to which, she was directed to the Customs Preventive Room and asked whether she is carrying any contraband to which, she responded in the negative. Two panch witnesses were called to witness the search and further proceedings. 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 being searched by any lady Customs Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022, before the court for drawing samples. Thus, there was a delay of about 20 days in moving said application; same is in contravention with the law which prescribes moving of the application under Section 52A within 72 hours of recovery of contraband. 9. Proforma Notice under Section 50, 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 indicate any 'receiving' rendered by applicant prior to her search. Said notice served upon the applicant is extracted as under: 10. 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 upon the applicant is extracted as under: 11. Delay in Trial: It was submitted that the applicant was arrested on 11th January 2022 and till date, only 2 out of 13 witnesses have 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c (M) No.3962/2002 decided on 17th February 2003; k. State of M.P. v. Kajad (2001) 7 SCC 673; l. Union of India v. Rattan Mallik, (2009) 2 SCC 624; and m. Khet Singh v. Union of India (2002) 4 SCC 380. Analysis 16. Heard counsel on behalf of parties and perused the material placed on record. The seizure in this case was on 11th January 2022 upon interception of the applicant at T-3 IGI Airport upon her entry into India from Uganda. On a preliminary check, she denied carrying any contraband, however, a search of her bags revealed 107 capsules of substance, the total weight of it being 1.253 kgs. The contraband was seized. All 107 capsules were opened and found to have heroin, the total weight 1.061 kgs with a value about Rs 7.43 crores. The threshold for commercial quantity of heroine is 250 grams, the seized contraband therefore, was at least four times that quantity. Sampling Procedure 17. The first objection has been taken of the sampling procedure where all 107 capsules were cut open and the contents were mixed together. Petitioner's contention being that mandatory provisions of sampling procedure under Section 52A, NDPS Act were not complied with. 18. Prior to 23rd D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking photographs, drawing representative samples and certifying the same, followed by disposal. 19. The above are relevant steps in the procedure, aside from other attendant guidelines. Notably, considering there is no procedure in the NDPS Act itself, SOs are usually relied upon as guideposts for proper acceptable seizure and sampling. 20. A view has been taken in various decisions of the Supreme Court [Noor Aga v. State of Punjab (2008) 16 SCC 417; Union of India v. Bal Mukund, (2009) 12 SCC 161; Basant Rai v. State, 2012 SCC OnLine 3319] as well as this Court including [Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128; Amani Fidel Chris v. Narcotics Control Bureau, 2020 (2) LRC 238 (Del); Betty Rame v. Narcotics Control Bureau, 2023 SCC OnLine Del 3279; and Amina v. State (NCT of Delhi) 2023 SCC OnLine Del 3491] that the SOs ought to be respected, and non-compliance thereof may invoke reasonable doubt on the strict process to be undertaken. Most decisions of the Supreme Court noted above are all cases arising in post-conviction appeals, some decisions have given the benefit of non-compliance to the accused at the stage of bail. 21. Yet another view has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, the seizure was made at the airport in a supervised environment where capsules were found to be containing heroin. As noted, there is no prohibition at least pre-December 2022 [when the notification issued by the Ministry of Finance, Government of India came into effect] in drawing the samples at the stage of seizure. Considering that the seized capsules would not comply with the definition of either "package/container", it would have to be seen whether the process adopted to cut open all 107 capsules and mixing them together in a homogenous mixture would cause any prejudice to the accused. As noted above, it is mandated that the drugs should be well-mixed to make them homogenous before drawing a sample. Guidelines in terms of multiple packages/containers require an option of bunching them in lots. The phrase used in clause 2.5 of SO 1/89 is "may be carefully bunched in lots". This is in contrast to the other clauses which use the words "must" and "should" or "shall". The option of drawing in lots must be provided in order to accommodate for various situations which may arise on the spot. 24. Nevertheless, without taking away from the mandatoriness of the requirement, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. ... 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail." (emphasis added) 30. Counsel for applicant relies upon Kashif (supra), a decision of a coordinate Bench of this Court, in order to contend that delay in filing Section 52A application ought to render the Court to afford benefit of doubt to the applicant. Relevant portions of Kashif (supra) are as under: "24. Hence, I am of the view that non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgments that there is no mandatory time duration prescribed for compliance of Section 52- A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act." (emphasis added) 32. The decision in Somdutt Singh (supra) was challenged before the Apex Court in Special Leave Petition (Crl.) No. 415/2024. By order dated 16th May 2024, Court dismissed the said special leave petition. 33. In the present case, the application under Section 52A, NDPS Act was preferred 17 days after the seizure of the contraband from the applicant. The applicant may, in accordance with applicable law, could potentially contend prejudice caused on account of this delay, during trial which would be addressed basis evidence led. The judgement of a coordinate Bench in Sovraj v. State 2023:DHC:8550, on similar lines, had observed as under: "57. It is pertinent to note that the Hon'ble Apex Court in the case of Union of India v. Mohanlal (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng capacity can carry different items on his or her body but that does not make those items as a part of body. The Court observed, "Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. 95. Therefore, Pawan Kumar (supra) concluded that an external article which does not form part of body is outside the ambit of the word "person" occurring in Section 50 of the NDPS Act. 96. What is most important to note in Pawan Kumar (supra) is that the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 65. However, we propose to put an end to all speculations and debate on this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 (1) (b) (ii) of the NDPS Act." ii. Dheeraj Kumar Shukla v State of U.P. 2023 SCC OnLine SC 918 where there was a seizure of about 65 kgs of ganja and the petitioner was in custody for about two and a half years, the Supreme Court while granting bail, stated as under: "3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and delay in disposal of cases it was stated inter alia that when an undertrial is charged with offences with minimum imprisonment of 10 years, and if they have been in jail for not less than 5 years, they may be released on bail upon furnishing bail bond in the sum of Rupees 1,00,000/- with two sureties for like amount. This view has been endorsed in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 603 as under: "4. Time and again, this Court has emphasised the need for speedy trial, particularly when the release of an undertrial on bail is restricted under the provisions of the statute, like in the present case under Section 37 of the NDPS Act. While considering the question of grant of bail to an accused facing trial under the NDPS Act in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [(1994) 6 SCC 731 : 1995 SCC (Cri) 39] this Court had observed that though some amount of deprivation of personal liberty cannot be avoided in such cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 of the Constitution would receive a jolt. It was further observed that after the accused pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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