Madhya Pradesh High Court
Zahida Qureshi vs The State Of Madhya Pradesh on 24 February, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 24th OF FEBRUARY, 2025
MISC. CRIMINAL CASE No. 7321 of 2025
ZAHIDA QURESHI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prakash Upadhyay - Senior Advocate with Shri Aditya Jain - Advocate for the
applicant.
Smt. Shraddha Tiwari - Government Advocate for the respondent/State.
ORDER
This first application under Section 483 of the Bharatiya Nagrik
Suraksha Sanhita, 2023, has been filed on behalf of the applicant for grant of
bail relating to Crime No.183/2024 registered at Police Station- Crime
Branch, District- Bhopal, for the offence under Sections 8, 20 of the Narcotic
Drugs & Psychotropic Substances Act, 1985 [for short 'Act, 1985']. The
applicant is in jail since 14.11.2024.
2. As per the case of the prosecution, the applicant has been made
accused in the alleged offence as upon the information received by the Crime
Branch, Bhopal, on 14.11.2024 from their informant, when they intercepted
the car bearing Registration No.DL-8-CAF-8092, two male and one female
(present applicant) were travelling and after enquiring about them, they have
disclosed their names and after following due procedure, when the car was
searched, then one bag was found in which nine brown coloured packets
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covered with cello tape were found along with Rs.2,00,000/- cash, which
was seized by the police. After opening those packets, some powder was
found therein and on preliminary physical verification, the powder was found
to be Charas, total weight of which was 8 kg. 400 grms. Thereafter, the
police seized those articles including five mobile phones and then seizure
memo was prepared and the applicant and other two accused persons have
been arrested and Crime No.183/2024 was registered.
3. Learned senior counsel for the applicant submits that the applicant
had moved an application before the Court below which was rejected,
therefore, this application has been filed. He further submits that the
Investigating Officer has not followed the provisions of the Narcotic Drugs
& Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules,
2022 [for short 'Rules, 2022']. He submits that Rule-3 of Rules, 2022,
provides classification of seized material and the manner as to how
t h e Panchnama is to be prepared and further Rule-10 of Rules, 2022,
prescribes the procedure for drawing samples. He submits that the said
procedure has not been followed and from the case-diary, it can be seen that
the procedure prescribed under the said provision for preparing Panchnama
and drawing samples, has not been followed. He submits that while taking
samples, the Investigating Officer even in presence of Magistrate has not
followed the proper procedure as per Section-52(A) of the Act, 1985. He
submits that there is a clear violation of Rule-10 of Rules, 2022, as the
narcotic substance contained in all nine packets was mixed as samras and
then samples have been taken, which is clear violation of Rule-10, therefore,
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the bail application may be considered because the said violation is reflecting
from the case-diary itself. In support of his submissions, he relies upon the
order passed by the Supreme Court reported in (2016) 3 SCC 379 parties
being Union of India Vs. Mohanlal & Another , order passed by the High
Court of Madhya Pradesh reported in 2024 SCC OnLine MP 1286 parties
being Vishal Shahni Vs. State of Madhya Pradesh and the order passed by
the High Court of Delhi at New Delhi reported in 2022 SCC OnLine Del
5029 parties being Ram Bharose Vs. State (Govt. NCT of Delhi) .
4. Learned counsel for the State opposes the submissions of learned
senior counsel for the applicant and submits that all these technicalities are
not required to be seen at the time of considering the bail application. She
submits that it is the subject-matter of trial and unless the Investigating
Officer discloses the said facts during the course of his examination, the said
aspect cannot be determined by the Court at this stage. She further submits
that looking to the quantity of seized narcotic substance and period of
custody of the applicant, this bail application deserves to be rejected.
5. I have heard the arguments advanced by learned counsel for the
parties and perused the record and also the judgments relied upon by the
parties.
6. As per the record, the Judicial Magistrate Class-I, Bhopal, was
informed and in her presence, the sampling got done and after taking the total
weight of narcotic substance, it was found to be 8.340 kgs. and two samples
were taken and not only this, but all material exercise got done in presence
of Judicial Magistrate Class-I and photographs of said exercise were also
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taken. After mixing the said substance as samras, the samples were taken. I
have also seen the procedure for taking samples prescribed in Rules-10 and
11 of the Rules, 2022 and it prima facie appears that proper procedure has
been followed because as per sub-rule (2) of Rule-11, the seized substance in
the packages or containers shall be mixed to make it homogeneous and in
representative before the sample in duplicate, has drawn. Even otherwise, the
Supreme Court recently in the case of Bharat Aambale Vs. The State of
Chhattisgarh [Cr.A. No.250 of 2025 arising out of SLP (CRL.) No.14420 of
2024] passed an order on 06.01.2025 and has observed with regard to
following the procedure as per Section-52(A) of the Act, 1985. The
observation made by the Supreme Court is as follows:-
"50.We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized
contraband in a safe manner yet it extends beyond the immediate context of drug disposal,
as it serves a broader purpose of also introducing procedural safeguards in the treatment of
narcotics substance after seizure inasmuch as it provides for the preparation of inventories,
taking of photographs of the seized substances and drawing samples therefrom in the
presence and with the certification of a magistrate. Mere drawing of samples in presence
of a gazetted officer would not constitute sufficient compliance of the mandate under
Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance
must take place at the time of seizure as held in Mohanlal (supra), yet we are of the
opinion that the process of inventorying, photographing and drawing samples of the seized
substance shall as far as possible, take place in the presence of the accused, though the
same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial
compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules
/ Standing Order(s) thereunder would have to be mandatorily treated as primary evidence
as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance
in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of
the NDPS Act is only intended to guide the officers and to see that a fair procedure is
adopted by the officer in-charge of the investigation, and as such what is required is
substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) /
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Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical
evidence rendering the prosecution's case doubtful, which may not have been there had
such compliance been done. Courts should take a holistic and cumulative view of the
discrepancies that may exist in the evidence adduced by the prosecution and appreciate the
same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary
inspires confidence and satisfies the court as regards the recovery as-well as conscious
possession of the contraband from the accused persons, then even in such cases, the courts
can without hesitation proceed to hold the accused guilty notwithstanding any procedural
defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules thereunder
may lead the court to drawing an adverse inference against the prosecution, however no
hard and fast rule can be laid down as to when such inference may be drawn, and it would
all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the
procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the
same, it will not be appropriate for the court to resort to the statutory presumption of
commission of an offence from the possession of illicit material under Section 54 of the
NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of
such material from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to show
that there was non-compliance of Section 52A, either by leading evidence of its own or by
relying upon the evidence of the prosecution, and the standard required would only be
preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS
Act, the onus would thereafter be on the prosecution to prove by cogent evidence that
either (i) there was substantial compliance with the mandate of Section 52A of the NDPS
Act OR (ii) satisfy the court that such non-compliance does not affect its case against the
accused, and the standard of proof required would be beyond a reasonable doubt."
7. As per the above observation, initial burden lies upon the accused to
show that there was non-compliance of Section-52(A) either by leading
evidence of its own or by relying upon the evidence of the prosecution,
meaning thereby that it is clear that at the stage of trial, it will be determined
as to whether the procedure prescribed under Section-52(A) has been
followed or not.
8. Recently, the Supreme Court in the case of Narcotics Control
Bureau Vs. Kashif [Cr.A. No.5544 of 2024 arising out of Special Leave
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Petition (Crl. No.12120 of 2024)] has also dealt with the provisions of
Section-52(A) of the Act, 1985, and observed as under:-
"36. At this stage, we must deal with the recent judgments in case of Simarnjit vs. State of
Punjab, (Criminal Appeal No.1443/2023) , in case of Yusuf @ Asif vs. State (2023 SCC
Online SC 1328), and in case of Mohammed Khalid and Another vs. State of Telangana
((2024) 5 SCC 393) in which the convictions have been set aside by this Court on finding
non-compliance of Section 52A and relying upon the observations made in case of
Mohanlal. Apart from the fact that the said cases have been decided on the facts of each
case, none of the judgments has proposed to lay down any law either with regard to
Section 52A or on the issue of admissibility of any other evidence collected during the
course of trial under the NDPS Act. Therefore, we have considered the legislative history
of Section 52A and other Statutory Standing Orders as also the judicial pronouncements,
which clearly lead to an inevitable conclusion that delayed compliance or noncompliance
of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to
seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and
Baldev Singh must take precedence over any observations made in the judgments made by
the benches of lesser strength, which are made without considering the scheme, purport
and object of the Act and also without considering the binding precedents.
xxx xxx xxx
39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the
scheme, object and purpose of the Act; as also the impact on the society as a
whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the
early disposal of the seized contraband drugs and substances. It was inserted in
1989 as one of the measures to implement and to give effect to the International
Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or thereafter,
would by itself not make the entire evidence collected during the course of
investigation, inadmissible. The Court would have to consider all the circumstances
and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate
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the trial nor would entitle the accused to be released on bail. The Court will have to
consider other circumstances and the other primary evidence collected during the
course of investigation, as also the statutory presumption permissible under Section
54 of the NDPS Act."
9. In view of the aforesaid provisions and enunciation of law, it is clear
that non-compliance of said provisions or procedure is nothing but a
procedural flaw and that does not vitiate the trial meaning thereby that all
these aspects have to be considered at the time of conducting the trial on the
basis of material adduced by the parties.
10. So far as the observations made by the Supreme Court in the case
o f Kashif (supra) is concerned, it has been very clearly observed that any
lapse or delay in compliance of Section-52(A) by itself, would neither vitiate
the trial nor would entitle the accused to be released on bail. Thus, in view of
the above and also the opinion taken by this Court on earlier occasion in case
o f Brajesh Thakur Vs. State of Madhya Pradesh [M.Cr.C. No.11617 of
2024] and also in case of Shahid Vs. State of Madhya Pradesh [M.Cr.C.
No.13662 of 2024], in my opinion, this bail application only on the basis of
lapses as have been pointed-out by learned senior counsel for the applicant,
is not liable to be considered when the period of custody is too less whereas
the quantity of seized narcotic substance is more than the commercial
quantity. Accordingly, the bail application stands rejected.
(SANJAY DWIVEDI)
JUDGE
Prachi
