The Single Bench of the Delhi High Court in the case of Kashif vs Narcotics Control Bureau consisting of Justice Jasmeet Singh held that the application u/s 52A of the NDPS Act for sampling should be made within 72 hours or around the said time frame.

Facts:

A Junior Intelligence Officer (JIO) of the Narcotics Control Bureau received information that a parcel at DHL Express Pvt. Ltd. in New Delhi was suspected to contain psychotropic substances. The officer informed his superior who directed another officer to act. A team was formed, and they found the parcel containing 13200 strips of Tramadol tablets.

They seized the contraband and found out it was booked through a firm by one of the accused, Ganesh Chaudhary. He was apprehended and made a disclosure statement leading to further seizures and arrests. The present Applicant, Kashif, was arrested for his involvement in sending the parcel to Ganesh Chaudhary through a bus conductor and providing the address of the consignee on WhatsApp.

Contentions Made:

Petitioner: The Applicant was arrested based solely on a statement made by co-accused Tamir Ali, who claimed that the Applicant was involved in the illegal export of NRx Tablets. Relying on Tofan Singh v. State of Tamil Nadu it was argued that such statements are inadmissible u/s 67 of the NDPS Act in court, except for the purpose of proving any recovery made because of the statement. They also claimed that the investigating agency did not follow proper procedures for seizure and sampling, which is required by law and was a violation of Standing Order 1/88. It was also alleged that there was no reasonable explanation for the delay of 51 days in applying for sampling before a Magistrate. Moreover, no recovery of any kind was effected from the Applicant.

Respondents: It was argued that the NDPS Act does not provide any statutory time frame in moving an application for sampling before the Magistrate u/s 52A. Even if there was a delay in filing the application u/s 52A, the applicant could not raise this issue on that day. Additionally, the applicant had not suffered any harm due to the delay.

Observations of the Court:

The question before the Bench was to figure out a suitable timeframe for applying to the Magistrate u/s 52A of the NDPS Act, as well as considering any consequences of delay. 

It perused Section 52 of the NDPS Act which talks about the disposal of seized narcotic drugs and psychotropic substances as well as Clause 1.5 and 1.13 of Standing Order 1/88, regarding the place, time, mode and time limit for drawl and dispatch of samples to laboratory. It opined that a new notification was issued on December 23, 2022, which repealed Standing Orders 1/88 and 1/89 and clarified that samples should be drawn as per Section 52A (2) NDPS.

However, this clarification could not be applied retrospectively. It noted that the Apex Court in Union of India v. Mohanlal pointed out that even though there may be confusion caused by Standing Order 1/89 and Section 52A NDPS, it is important to remember that an application for taking samples and certification should not be delayed, u/s 52A NDPS Act. Reliance was also placed on Amani Fidel Chris v. Narcotics Control Bureau, where bail was granted due to non-compliance with procedure u/s 52A and Standing Order 1/89. Hence, it opined that Section 52A of the NDPS Act does not specify a time frame for applying to the magistrate to collect a sample. The only time frame mentioned is in Standing Order 1/88, which is related to sending the sample to the FSL. Guidelines prescribed in the Standing Orders cannot be flouted and their substantial compliance must be insisted upon as observed in Noor Aga v. State of Punjab & Anr. 

It further opined that if the argument made by the respondent was accepted, that Section 52A of the NDPS Act doesn’t specify a timeframe for submitting the application, it would go against the intention of the legislature. It is a well-established legal principle that if a statute doesn’t indicate a specific time limit, it can be inferred from guidelines or should be within a reasonable timeframe.

It held that the legislature did not intend for authorities to take their time in submitting an application u/s 52A NDPS just because there is no time limit mentioned in the statute. Instead, the application should be submitted as soon as possible to prevent any tampering with the samples, as the evidence obtained from the seizure, quantity and quality of contraband is crucial in NDPS cases. The drawing of samples and certification in the presence of a magistrate is of utmost importance. Thus, Standing Order 1/88 and Section 52A NDPS must be read together to imply a reasonable time for submitting the application for drawing the sample and certification before the Magistrate.

Judgment:

The Bench stated that it was unreasonable to wait 51 days to file an application u/s 52A of the NDPS Act for drawing a sample. During this time, the contraband could be tampered with. Moreover, the Respondent did not provide any reasons for the delay. It held that the violation of Section 52A vitiated the sample collection procedure and the benefit of the same must go to the Applicant. The applicant was released on bail on certain terms and conditions.

Case: Kashif vs Narcotics Control Bureau

Citation: Bail Application No. 253/2023 

Bench: Hon’ble Mr. Justice Jasmeet Singh

For Petitioner: Mr Aditya Aggarwal, Mr Naveen Panwar and Ms Kajol Garg, Adv.

For Respondent: Mr Subhash Bansal, Senior Standing Counsel for NCB with Mr Shashwat Bansal, Adv. 

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