Madhya Pradesh High Court
Rajendra Singh vs Union Of India on 30 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 30th OF APRIL, 2025
MISC. CRIMINAL CASE No. 52458 of 2024
RAJENDRA SINGH
Versus
UNION OF INDIA
Appearance:
Sh. Sankalp Kochar (through VC) and Ms. Sharmila Sharma, learned
counsel for the applicant.
Sh. P. Prasad and Sh. Chandan Airen, ld. counsel for the respondent.
ORDER
This first bail application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (equivalent to Section 439 of Cr.P.C.) has been filed
by the applicant Rajendra Singh S/o Late Kamal Singh for grant of regular
bail, who has been arrested on 18.03.2024 in connection with Crime
No.01/2024 registered at Investigation Agency - Customs Department,
Customs Commissionerate, Indore(M.P.) for commission of offences under
Sections 8(c), 21(c) of NDPS Act.
2. As per prosecution case, on 18.03.2023, the applicant was rounded
up the investigating agency near Ujjain Ring Road on the basis of
information received from the informer that applicant was transporting some
narcotic substance. On being intercepted and searched 46200 tablets of
Alprazolam were recovered from his possession. Accordingly, the offence
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has been registered against him in Crime No.01/2024 registered at
Investigation Agency - Customs Department, Customs Commissionerate,
Indore(M.P.) for commission of offences under Sections 8(c), 21(c) of NDPS
Act.
3. Learned counsel for the applicant submits that no case under the
NDPS Act is made out against the applicant even if the entire prosecution
story is treated to be gospel truth. He has been falsely implicated in the case.
The proceedings pertaining to seizure, sampling and testing have been
carried out in utter violation of Narcotic Substances (Seizure, Storage,
Sample and Disposal) Rules, 2022 (hereinafter referred 'Rules 2022'). The
applicant was not kept present at the time of sampling and only one strip of
seized tablets was sent for examination. Learned counsel specifically
referring that seizure has taken place on 18.03.2024 whereas the samples
were drawn on 03.04.2024 by long delay. Learned counsel further alleged
that there are violation of provisions as contained in Section 52A of NDPS
Act and Rule 3(3) and 14 of the Rules, 2022 have also been violated. To
bolster his submissions, learned counsel has placed reliance upon the
judgment of the Apex Court in the case of Bharat Aambale vs. State of
Chhattisgarh, 2025 SCC OnLine SC 110. Learned counsel has further placed
reliance on the judgment of the Apex Court in Mohd. Muslim alias Hussain
vs. State (NCT of Delhi), 2023 SCC OnLine SC 352 to buttress his
submission that bar contained under Section 37 of NDPS Act is not absolute.
He has also placed reliance on the judgment of the Apex Court in Mangilal
vs. State of M.P. 2023 SCC OnLine SC 862 . Period of incarceration which is
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13 months in the present case is one of the considerations for relaxing the bar
enshrined under Section 37 of NDPS Act. Learned counsel further submits
that the trial has not proceeded and final conclusion of the trial will certainly
take a long time. In support of his submissions, he has also referred the order
dated 13.02.2023 passed by this Court in the case of Ravinandan Tiwari vs.
State of MP (MCRC No.4394/2023) and Mahendra Prasad Gupta vs. State of
M.P. (MCRC No.32879/2024) . He has also referred the order of Lakhvir
Singh @ Lakha vs. State of Punjab (Punjab & Haryana High Court CRM-M-
10288/2017) passed by Punjab and Haryana High Court and the case of
Gaurav Mishra vs. Union of India (Misc. Bail Application No.1771/2024)
passed by Allahabad High Court. On these above submissions, learned
counsel prays for allowing the bail application and for grant of bail.
4. Per contra, learned counsel for the respondent-Union of India
representing through Customs Department has vehemently opposed the
prayer on the ground that it is not necessary in all circumstances that
sampling be made in the presence of the applicant/accused. For this, he has
placed reliance on the judgment para 50 (II) of the judgment passed in the
case of Bharat Aambale (supra) . Learned counsel has further placed reliance
on para-24 of the judgment passed by the Apex Court in Narcotics Control
Bureau vs. Kashif (SC), 2024 INSC 1045 to buttress his submissions that
mere delay in sampling and delay in compliance of Section 52A of the
NDPS Act does not vitiate the trial and on this count accused cannot be
released on bail or claim for acquittal. He further submits that learned trial
Court has framed the charges and cases fixed for examination of the
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prosecution witnesses. He has further relied upon Rule 96 Clause - 3 of
Drugs and Cosmetics Act, 1945 for buttressing his point that one tablet
seized were bearing same batch number, therefore, it was not necessary to
send for examination each and every tablet instead of one strip. Sending one
strip of tablets for examination is sufficient as all the strips were of same
batch number. He further submits that bar of Section 37 of NDPS Act is
attracted as more than 5 kg. alprazolam is seized whereas more than 100
grams of the aforesaid psychotropic substance is a commercial quantity and
on these submissions urges the Court for rejection of the bail application.
5. In reply, learned counsel for the applicant by relying para 50 (II) of
the judgment passed in the case of Bharat Aambale (supra) submits that no
explanation has been given for sampling in absence of the accused. Rules of
2022 under NDPS Act has been given go by. Rigors of Section 37 of NDPS
Act are not absolute.
6. Heard rival submissions at bar with the aid of case diary.
7. From perusal of para 50(II) of Bharat Aambale's case (supra), it is
apparent that though it has been accepted that in inventorying, photographing
and drawing samples of the seized substance shall as far as possible should
take place in the presence of the accused, but it cannot be construed as a
provision which is absolute and mandatory and its violation creates
entitlement in favour of the applicant/accused for bail. All alleged violations
of Rules and NDPS Act as resorted by the counsel for the applicant can be
raised during the course of trial. Hon'ble Apex Court in para-24 of Narcotics
Control Bureau (supra) has held that Section 52A has been inserted only for
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the purpose of early disposal of the seized contraband drugs and substances,
considering the hazardous nature, vulnerability to theft, constraint of proper
storage space etc. It has also been held that however delayed compliance or
non-compliance of the said provision by the concerned officer authorised to
make application to the Magistrate could never be treated as an illegality
which would entitle the accused to be released on bail or claim acquittal in
the trial, when sufficient material is collected by the Investigating Officer to
establish that the Search and Seizure of the contraband substance was made
in due compliance of the mandatory provisions of the Act. It is also not in
dispute as held by the Apex Court in Union of India vs. Sanjeev V.
Deshpande, 2014(5) SCC (Cri) 496 that provision of NDPS Act are not to be
read in exclusion to Drugs and Cosmetic Act, 1940 rather provisions of
NDPS Act are to be read as supplementing the provisions as contained in
Drugs and Cosmetics Act. It has also settled by the judgment of the Apex
Court in the case of Hira Singh & Anr. vs. Union of India & Anr. 2020 AIR
(SC) 3255 that in case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances with one or more neutral substance(s), quantity of
neutral substance(s) is not to be excluded while determining "small or
commercial quantity" of Narcotic Drugs or Psychotropic Substances.
8. In view of the aforesaid judgments, arguments advanced on behalf
of the applicant that narcotic substance in seized alprazolam tablets is of
quantity which falls under small quantity and due to the violations of the
provision of Section 52A and Rules 3(3) & 14 of Rules, 2022 applicant is
entitled for bail cannot be accepted.
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9. In the cases like the present one where commercial quantity of
psychotropic substance/alprazolam rigors of Section 37 of NDPS Act come
into play which mandate the conditions firstly that there are reasonable
grounds for believing that accused is not guilty of such offence and secondly
he is not likely to commit any offence while on bail or to be fulfilled before
enlarging the accused on bail. In the present case, looking to the evidence
available on record and quantity of seized psychotropic substance
alprazolam, this Court at present cannot form any opinion that the applicant
has not committed an offence. In the aforesaid scenario, this Court is not
inclined to grant bail to the applicant. Accordingly, the application is
rejected.
Certified copy as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
soumya
