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TMI Blog2023 (12) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... of 5000 tablets of Alprazolam were found. 2.2 Out of the recovered tablets, one strip of 10 tablets was opened and upon weighing the tablets, the weight of 10 tablets was found to be 2 grams. Therefore, total weight of the 5000 tablets of Alprazolam was ascertained to be 1 kg, which constitutes commercial quantity (commercial quantity of Alprazolam being 100 grams). 2.3 Upon investigation from the manufacturer of the medicines, it was found that the medicines were sold to M/s SS Medicos in District Ballia, Uttar Pradesh. It was revealed that one Mr. Bhanu Pratap Singh was in charge of the affairs of M/s SS Medicos. Accordingly, Bhanu Pratap Singh was served with notice under Section 67 of the NDPS Act, who tendered his voluntary statement and disclosed that he had sold 20,000 tablets of Alprazolam to one Manish Gupta. Consequently, Bhanu Pratap Singh was arrested on 5th December, 2020. 2.4 Subsequently, upon notices under Section 67 of the NDPS Act being issued to the aforesaid Manish Gupta, he tendered his voluntary statement wherein he stated that out of the 20,000 tablets that he had purchased from Bhanu Pratap Singh, he had booked 5,000 tablets which were seized from DTDC, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance is placed on the judgment of the Supreme Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. II. The Narela Flat has allegedly been shown as the rented accommodation of the applicant. However, no rent agreement or any other appropriate document has been placed on record to show that the apartment was in fact in possession of the applicant. III. The Narela Flat was searched without authorization and in violation of Section 42 of the NDPS Act as no reasons to believe were recorded in writing and forwarded to a superior officer. Further, at the time of seizure, no preliminary testing was undertaken by the agency, which ought to have been done. IV. There is an inordinate delay in compliance of the procedure prescribed under Section 52-A of the NDPS Act and no explanation has been given on behalf of the NCB for the same. In this regard, reliance is placed on the judgment of the Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC 379 and the judgments of the Co-ordinate Benches in Kashif v. Narcotics Control Bureau, (2023) SCC OnLine Del 2881; Sarvothaman Guhan @ Saarvo v. Narcotics Control Bureau, 2023 SCC OnLine Del 5643 and Tamir Ali v. Narcotics Control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other co-accused persons has duly been filed before the Trial Court in a pen drive. VI. Applicant is also involved in another case being Crime No. VIII/13,13A/DZU/2020 under Sections 8/22(c)/23/25/29 of the NDPS Act. VII. Applicant cannot claim parity with Arun Kumar @ Varun as no recoveries were made from him. 6. I have heard the counsels for the parties and perused the material on record. 7. In the present case, it cannot be disputed that on the basis of the disclosure made by the applicant, at least three recoveries of commercial quantities of psychotropic substances have been made. The first recovery of commercial quantity of psychotropic substances was made from the Narela Flat. In fact, the applicant was the one who guided the raiding team to the aforesaid flat and the panchnama thereof was made in the presence of two independent witnesses. Further, a total of 26 parcels containing commercial quantity of psychotropic substances were also recovered from the Foreign Post Office ITO, Delhi, pursuant to the disclosures made by the applicant in his statement under Section 67 of the NDPS Act. In view of Section 27 of the Indian Evidence Act, 1872, any recovery made pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of trial before learned Special Judge. It is pertinent to note that, the said standing orders cannot be exhaustive enough to cover all factual scenarios at the time of seizure of the contraband. Various factors like nature of contraband seized, the volume/quantity of the seizure, place of seizure, time of seizure, etc. will be relevant to determine any non-compliance thereof and effect of such noncompliance. 35. The issue with regard to defect in sampling was for the first time dealt with by the Hon'ble Supreme Court in Balbir Singh (supra). In the said judgment, it was observed that the Investigating Officer is bound by the procedural instructions and has to follow the same, and in case of non-compliance thereof, and if no proper explanation is forthcoming, then the same would have adverse impact on the prosecution's case. It was further noted in the said judgment that the Courts would appreciate the evidence and merits of the case keeping these aspects in view. In the opinion of this Court, whether the samples drawn would be a true representative sample of the contraband recovered, can be answered by the chemical analyst, who analyses the sample and give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of delayed compliance of Section 52-A of the NDPS Act. 18. In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act. 19. At this stage, it is apposite to refer to the judgments relied on by the counsel for the applicant. In Kashif (supra) and Tamir Ali (supra) no recovery was effected from the possession or at the instance of the applicants therein. Further, in Sarvothaman Guhan (supra), the recovery from the applicant was not of a commercial quantity. Therefore, reliance placed on the aforesaid judgments is misplaced as the rigours of Section 37 of the NDPS Act were not applicable therein. 20. Considering the aforesaid facts and circumstances including the fact that commercial quantities of psychotropic substances have been recovered at the instance of the applicant, it is not possible to form a prima facie view at this stage, that the applicant is not guilty of the offences or that he would not com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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