Pankaj Singh Kuwar vs State Of Uttarakhand
2025 Latest Caselaw 2760 UK

Uttarakhand High Court

Pankaj Singh Kuwar vs State Of Uttarakhand on 22 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL
                      Bail Application No. 513 of 2025

Pankaj Singh Kuwar                                 ..................... Applicant

                                          Versus

State of Uttarakhand
                                                          ...............Respondent
                                   With
                     Bail Application No. 556 of 2025

Manish Singh Rana                                   ..................... Applicant

                                          Versus

State of Uttarakhand
                                                          ...............Respondent
Present:
Mr. Vinod Sharma and Mr. Kamlesh Budhlakoti, learned counsel for the applicants.
Mr. Pankaj Joshi, learned A.G.A. for the State.



Hon'ble Mr. Justice Rakesh Thapliyal, J.

1. Both the applications are being decided together since both the applicants are involved in relation to First Information Report dated 04.12.2024 bearing FIR No. 0040 of 2024 for the offences punishable under Section 8/20 read with Section 29 and 60 of NDPS Act, P.S. Joshimath, District Chamoli.

2. Both the bail applications were heard on different occasions at length and both the parties advance their submission particularly in reference to Section 52-A of the NDPS Act, which contemplates certain procedures to be followed while preparing an inventory and it's certification by the Magistrate concerned.

3. Mr. Vinod Sharma, learned counsel for the applicants submits that the procedure as contemplated under Section 52-A of the Act are mandatory on conjoint reading with Rule 3, 8, 9, 13, 16,

17 and 18 of the Rules namely "Narcotics Drugs and Psychotropic Substances (Search, Seizure, Sampling and Disposal) Rules, 2022, which were framed in exercise of the powers conferred by Section 76 read with Section 52-A of the Narcotics Drugs Psychotropic Substances Act, 1985 (Act No. 61 of 1985).

4. On plain reading of Section 52-A of the Act and the Rules under Chapter 4 of 2022 Rules i.e. Rule 16, 17 and 18 it reveals that the procedure has to be followed strictly since sub-section (4) of Section 52-A clearly stipulates that the inventory, photographs of Narcotics Drugs Psychotropic Substances, Control Substances or Conveyance and any list of samples drawn under sub-section (2) and certified by the Magistrate are primary evidence in respect of such offence.

5. Mr. Vinod Sharma, learned counsel for the applicant, argued that since in view of sub-section (4) of Section 52-A the evidence as collected during search and seizure including the samples and the inventory and the certification by the Magistrate are the primary piece of evidence, therefore, the procedure as required to be adopted in collecting these evidences cannot be termed as directory rather it has to be termed as mandatory.

On the other side, learned counsel for the State vehemently oppose such submissions by submitting that in view of recent judgment of the Hon'ble Apex Court i.e. in the case of Bharat Aambale vs. State State of Chhattisgarh i.e. Criminal Appeal No. 250 of 2025 arising out of SLP (Crl) No. 14420 of 2024, 2025 INSC 78 the procedure as stipulated under Section 52-A is nothing but is primarily for the disposal and destruction of the seized contraband in a safe manner.

6. Mr. Pankaj Joshi, learned A.G.A. also placed another recent judgment of the Hon'ble Apex Court in the case of State of Kerala vs. Vaisakh' arising out of SLP (Crl) 8556 of 2024 decided on 19.03.2024, wherein, this court observed as under:

"Though we are not inclined to interfere with the conclusions drawn for the grant of bail, we wish to clarify that the question of applicability of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Rule 3 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, as interpreted in the impugned judgment by relying upon some of the decisions of this court, is incorrect. The law has been appropriately explained and elucidated in the later decisions of this court in "Narcotics Control Bureau vs. Kashif' and 'Bharat Aambale vs. State of Chhasttisgarh'. The ratio in the said decisions is binding."

7. By referring the aforesaid judgment of the Hon'ble Apex Court Mr. Pankaj Joshi, learned A.G.A. submits that the decision of the Hon'ble Apex Court in the case of 'Narcotics Control Bureau vs. Kashif' and 'Bharat Aambale vs. State of Chhattisgarh' are the correct law and are binding.

8. Now, I have also gone through with the judgment rendered by the Hon'ble Apex Court in the case of NCB vs. Kashif' wherein in paragraph 15 to 24 the necessity of insertion of Section 52A has been discussed, which are being reproduced herein as under:

"15. The necessity to insert Section 52A arose in view of the International Convention of 1988 held by the United Nations, which adopted "United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988".

Another convention under the aegis of South Asian Association for Regional Cooperation (SAARC) also came to be held in December, 1988, in which it was resolved that Member- States will take measures for early destruction or lawful disposal of narcotic drugs and psychotropic substances. India being Member-State, was a signatory to the said conventions. The Central Government therefore introduced a Bill in Parliament, i.e., the Narcotic Drugs or Psychotropic Substances (Amendment) Bill, 1988, specifically mentioning that it was for giving effect to the International Conventions. Resultantly, the

statutory provision as contained in Section 52A for disposal of seized narcotic drugs and psychotropic substances came to be inserted in the Act with effect from 29.05.1989.

16. The insertion of Section 52A was followed by the Standing Order No. 1 of 89 dated 13.06.1989. The said Standing Order No. 1 of 1989 came to be issued by the Central Government in exercise of the powers conferred by sub-section (1) of Section 52A of the said Act as it was considered necessary and expedient to determine the manner in which the narcotic drugs and psychotropic substances should be disposed of after their seizure, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space. Clause 2.1 of the said Standing Order No.1 of 1989 stated that all drugs shall be properly classified, carefully weighed and sampled on the spot of seizure.The said standing order also provided about the drawal of samples on the spot of recovery, quantity to be drawn for sampling, etc. It also provided a detailed procedure with regard to the method of drawal of representative samples, storage of samples, dispatch of samples, preparation of inventory, etc., and also provided for an early disposal of drugs and other articles by having recourse to the provisions of subsection (2) of Section 52A of the Act. The relevant part of the Standing Order No. 1/89 reads as under:-

"SECTION II - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC.

3.1. Preparation of inventory

After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the panchnama. Original wrappers shall also be preserved for evidentiary purposes.

SECTION III - RECEIPT OF DRUGS IN GODOWNS AND PROCEDURE

3.2. Custody of drugs in godowns - storage procedure

All drugs shall invariably be stored in safes and vaults provided with a double-locking system. Agencies of the central and state governments may specifically designate their godowns for storage purposes. The godowns should be selected keeping in view their security angle, juxtaposition to courts, etc.

3.3. Maintenance of godown and procedure for deposit of drugs

Such godowns, as a matter of rule, shall be placed under the overall supervision and charge of a gazetted officer of the respective enforcement agency, who shall exercise utmost care,

circumspection and personal supervision as far as possible. Each seizing officer shall deposit the drugs fully packed and sealed in the godown within 48 hours of such seizure, with a forwarding memo indicating NDPS Crime Number as per Crime and Prosecution (C & P Register) under the new law, name of the accused, reference of test memo, description of the drugs, total number of packages/containers etc.

3.8. Prescription of periodical reports and returns

The heads of the respective enforcement agencies (both central and state governments) may prescribe such periodical reports and returns, as they may deem fit, to monitor the safe receipt, deposit, storage, accounting and disposal of seized drugs.

3.9. Pre-trial disposal of drugs

Since the early disposal of drugs assumes utmost consideration and importance, the enforcement agencies may obtain orders for pre-trial disposal of drugs and other articles (including conveyance, if any) by having recourse to the provisions of subsection (2) of Section 52A of the Act.

SECTION IV - ACTION TO BE TAKEN BY POLICE AND OTHER EMPOWERED OFFICERS FOR PRE-TRIAL DISPOSAL

4. Follow-up action to be taken by police and empowered officers

Application to magistrate for pre-trial disposal

Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer, referred to in paragraph 3.3 of the Order shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and such other particular as may be considered relevant to the identity of the aforesaid drugs in any proceedings under the Act and make an application to any magistrate for the purpose of:

(a) Certifying the correctness of the inventory so prepared; or

(b) Taking, in the presence of such magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such magistrate, and certifying the correctness of any list of samples so drawn.

4.1. Magistrate to allow application

Where an application is made under sub section (2) of Section 52A of the Act, the magistrate shall, as soon as may be, allow the application.

4.2. Courts to treat documents and list of samples certified by magistrate as "primary evidence."

Notwithstanding anything contained in the Indian Evidence Act, 1872 (1of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act shall treat the inventory, the photographs, or narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) ibid and certified by the magistrate, as primary evidence in respect of such offence.

4.3. Grounds to be enumerated in application.

While preferring an application under section 52A to any magistrate, emphasis may be laid on "expediency of disposal". The grounds that may be highlighted may pertain to:

(i) Risk of pilferage, theft and substitution;

(ii) Constraints of storage and hazardous nature;

(iii) High potential and vulnerability of abuse;

(iv) High temptations to traffickers;

(v) Diminution in the value of other articles (including conveyances) due to long storage, etc."

17. The Central Government thereafter had issued a Notification dated 16.01.2015 i.e. G.S.R. 38(E) in exercise of the powers conferred by Section 52A, specifying the narcotic drugs and psychotropic substances, controlled substances and conveyances to be disposed of, the officers who shall dispose them of and the manner of their disposal.

18. It is very much pertinent to note that the Standing Instructions No. 1 of 88 dated 15.03.1988 and the Standing Order No. 2 of 88 dated 11.04.1988 issued by the NCB, and the Standing Instructions No. 1 of 89 dated 13.06.1989 and G.S.R. 38(E) dated 16.01.2015 issued by the Central Government, having been issued in exercise of its powers conferred under the Act, had the statutory force and the procedure mentioned

therein with regard to the classification, weighing and drawing of samples on the spot of seizure and disposal of the remaining drugs, substances and other articles etc. remained in force and were acted upon all throughout till the Notification dated 23.12.2022 came to be issued by the Central Government, in exercise of the powers conferred by Section 76 read with Section 52A of the said Act.

19. Vide the said Notification, the Rules called "Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022" came to be published. The said Rules provided for the procedure to be followed for the Seizure and Storage, Sampling, Disposal of the seized material. The Rule 29 of the said Rules, repealed the Standing Order No. 1 of 88 dated 15.03.1988, Standing Order No. 2 of 88 dated 11.04.1988 issued by the NCB, and the Standing Order No.1 of 89 dated 13.06.1989 and the G.S.R. 38(E) issued by the Government of India, alongwith the other Notifications. However, subrule (2) of Rule 29 stated that notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Standing Order or notification repealed by sub-rule (1), shall in so far as it is not inconsistent with the provisions of the said Rules, be deemed to have been done or taken under the corresponding provision of the said Rules.

20. Now, so far as Section 52A is concerned, the language employed therein itself is very clear that the said provision was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and other relevant considerations. Apart from the plain language used in the said section, its Heading also makes it clear that the said provision was inserted for the Disposal of the seized narcotic drugs and psychotropic substances. As per the well settled rule of interpretation, the Section Heading or Marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The Section Heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the section which follows than might be afforded by a mere preamble.4

21. The insertion of Section 52A with the Heading "Disposal of seized narcotic drugs and psychotropic substances" along with the insertion of the words "to provide for the forfeiture of property derived from or used in, illicit traffic in narcotics drugs and psychotropic substances, to implement the provisions of International Conventions on Narcotics Drugs and Psychotropic Substances", in the long title of the NDPS Act, by Act 2 of 1989 w.e.f. 29.05.1989, leaves no room of doubt that the said provision

of Section 52A was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, as one of the measures required to be taken to implement the provisions of the International Conventions on Narcotics Drugs and Psychotropic Substances. The Heading of Section 52A i.e. Disposal of seized narcotic drugs and psychotropic substances delineates the object and reason of the insertion of said provision and such Heading cannot be underscored. From the bare reading of Section 52A also it is very much discernable that sub-section (1) thereof empowers the Central Government, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, to specify narcotic drugs, psychotropic substances for the purpose of their disposal as soon as may be after their seizure, by such officer and in such manner as the Central Government may determine after following the procedure specified in sub-section (2).

22. Sub-section (2) of Section 52A prescribes the procedure to be followed by the authorized officers for the disposal of such contraband narcotics drugs and psychotropic substances at the pre-trial stage. As per the procedure laid down in the said sub- section, where any narcotics drug, psychotropic substance or controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the concerned officer authorized as per sub-section (1) has to prepare an inventory of such drugs or substances in the manner as stated in the said provision, and then make an application to the Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Sub-section (3) requires that an application made under sub-section (2), should be allowed by the Magistrate as soon as may be, and sub-section (4) thereof states that such inventory, photographs and the list of samples so drawn, if any, under sub-section (2) and certified by the Magistrate shall be treated as the primary evidence in respect of the offence under the Act.

23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub-section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under subsection (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would

nullify or vitiate the entire case of the prosecution. The jurisprudence as developed by the courts so far, makes clear distinction between an "irregular proceeding" and an "illegal proceeding." While an irregularity can be remedied, an illegality cannot be. An irregularity may be overlooked or corrected without affecting the outcome, whereas an illegality may lead to nullification of the proceedings. Any breach of procedure of rule or regulation which may indicate a lapse in procedure, may be considered as an irregularity, and would not affect the outcome of legal proceedings but it can not be termed as an illegality leading to the nullification of the proceedings.

24. Section 52A was inserted only for 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. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, 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."

In paragraph 39 the Hon'ble Apex Court summarized as under:

"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 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. On perusal of paragraph (iv) and (vi) of paragraph 39 of the aforesaid judgment it clearly reveals that sub-section (2) of Section 52-A lays down the procedure as contemplated under sub-section (1) thereof and any lapse and delay in 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 and the court will have to consider other circumstances and other primary evidence collected during the course of investigation as also the statutory presumption permissible under Section 54 of the NDPS Act.

10. The another judgment i.e. in the case of Bharat Aambale vs. The State of Chhattisgarh (Supra), which is also a correct law in view of the judgment of the Hon'ble Apex Court dated 19.03.2025 in the case of State of Kerala vs. Vaisakh, in which the Hon'ble Supreme Court summarized in para 50 as under:

"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) / 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."

11. In paragraph (III) it has been observed that 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.

12. In paragraph (IV) it has been further held that the procedure as prescribed under 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. However, in paragraph

(V) it is further observed that non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case.

13. On reading of both the aforesaid judgments i.e. in the case of 'NCB vs. Kashif' and 'Bharat Aambale vs. The State of Chhattisgarh' since the law has explained in both the recent judgments of the Hon'ble Apex Court is now the correct law in view of the judgment passed by the Hon'ble Apex Court dated 19.03.2025 in the case of State of Kerala vs. Vaisakh, therefore, both the judgments are binding and on perusal of both the judgments it is now very clear that Section 52A is only a procedural part and any lapse thereof will not vitiate the trial, however, as observed in the case of 'Bharat Aambale vs. The State of Chhattisgarh' particularly paragraph (III) of paragraph 50 the 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 treated mandatorily as a primary evidence as per sub-section (4) of Section 52A.

14. On perusal of both the judgments, what this court observed that non-compliance of the procedure as stipulated under Section 52A no doubt will not vitiate the trial but in view of paragraph 50 of the recent judgment of the Hon'ble Apex Court in the case of 'Bharat Aambale vs. The State of Chhattisgarh' the evidence like inventory photographs and samples of seized substance prepared in compliance of Section 52A of the NDPS Act have to be mandatorily treated as a primary evidence.

15. On the other side, Mr. Vinod Sharma placed reliance on the judgment of Hon'ble Apex Court in the case of Vihaan Kumar vs.

State of Haryana and Another decided on 07.02.2025 2025 SCC Online SC 269 wherein the following conclusion were drawn.

"21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution.

Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

16. By referring this judgment Mr. Sharma submits that any statutory restriction including Section 37 of the NDPS Act do not affect the power of the court to grant bail when the violation of Article 21 and 22 of the Constitution is established.

17. In addition to this, Mr. Saurabh Pandey placed reliance on other judgment i.e. in the case of Mortuza Hussain Chaudhary vs.

The State of Nagaland in CRLA No. 4872-4873 of 2024 decided on 05.03.2025, wherein the constitutional provision has been dealt with the provisions of the NDPS Act.

18. Now in the instant case, the applicants are praying for bail and since the alleged recovered contraband is commercial one then in such an eventuality, the parameter while granting the bail has to be considered in view of two twin conditions as stipulated under Section 37.

19. In this regard Mr. Vinod Sharma placed before this court the judgment of the Hon'ble Apex Court in the case of State of M.P. vs. Kajad (2001) 7 SCC 673 and by referring this judgment he submits that while considering the twin conditions as stipulated under Section 37 of the Act the court has to be seen whether there are reasonable grounds for believing that the accused is not guilty of the offence with which he is charged and further that he is not likely to commit any offence while on bail. Paragraph 5 of the judgment for ready reference is also reproduced herein as under:

"Para 5. Section 37 of the Act provides that the offences under the Act shall be cognizable and non-bailable. It reads:

"Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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 opposes 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 or any other law for the time being in force, or granting of bail."

The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub clause (ii) of clause

(b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for."

20. The another judgment, which has been relied upon in the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and particularly placed reliance on three paragraphs of this judgment i.e. paragraph 5, 6 and 7. Paragraph 5 refers Section 37 and the same is not being reproduced, however, paragraph 6 and 7 are being reproduced herein as under:

"6. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995 (4) SC 253) clause (b) of sub- section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds"

means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37. It did not take note of the confessional statement recorded under Section 67 of the Act. Description Serial no.43 of the Schedule which reads as follows has not been kept in view.

Sl. No. International Other Chemical name non- proprietary non-proprietary ......

43 DIAZEPAM 7-Chloro-1, 3-dihydro-1- methyl-5-phenyl- 2H-1 4-benzondiazepin-2-one .......

In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason."

21. By referring the aforesaid judgment it is argued that the conditions/limitations as stipulated under Section 37 are 'cumulative' and not 'alternative and the satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds and the expression "reasonable grounds" means something more than prima-facie grounds.

22. One more judgment has been relied i.e. in the case of Union of India vs. Rattan Mallik Alias Habul (2009) 2 SCC 624 by placing reliance on paragraph 12 to 14, which reads as under:

"12. It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and

not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".

13. The expression `reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv Shanker Kesari2] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of `not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."

23. By referring the aforesaid judgment learned counsel for the applicant submits that while dealing with the bail application it is not necessary to weigh the evidence meticulously and arrive to a positive finding and only this much has to be seen whether there is a reasonable ground that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the said Act while on bail. He submits that the satisfaction of the court about the existence of the said twin conditions is only for a limited purpose and is confined to the question of releasing the accused on bail.

24. In view of the submissions as advanced by the learned counsel for the parties and further after gone through the judgment of the Hon'ble Apex Court relied upon by the learned

counsel for the parties as well as by the prosecution, this court is of the view that the law as declared by the Hon'ble Apex Court in the two cases i.e. 'NCB vs. Kashif' and 'Bharat Aambale vs. State of Chhattisgarh' (supra) are binding and the lapse in compliance of Section 52A of the NDPS Act and the Rules made thereon will not vitiate the trial and can be a subject matter of trial, however, in view of the conclusion as drawn in paragraph 50 of the judgment the inventory, photographs of samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act has to be mandatorily treated as a primary evidence as per sub-section (4) of Section 52A of the Act and the court should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate carefully.

25. In the present case present applicants are languishing in jail since 04.12.2024 in relation to First Information Report dated 04.12.2024 bearing FIR No. 0040 of 2024, P.S. Joshimath, District Chamoli, wherein, the present applicants have been implicated for the offences punishable under Sections 8/20 read with Section 29 and 60 of the NDPS Act. As per the allegation as alleged in the FIR there is a joint recovery of 1.513 kgs of charas from the motorcycle owned by one of the applicant. Since the alleged contraband shown to be recovered is a commercial quantity and the present applicants are praying for bail, therefore, before considering the bail application the two limitations as stipulated under Section 37 of the NDPS Act has to be dealt with.

26. Learned counsel for the applicant Mr. Vinod Sharma argued that the alleged contraband shown to be recovered from the present applicants though is commercial one but was recovered from the joint possession of both the accused persons namely

Manish Singh Rana and Pankaj Singh Kuwar from the motorcycle owned by one of the accused person but no procedure as prescribed under Section 42 of the NDPS Act has been followed since the secret information as received from the informant were not recorded in writing. He submits that the secret information as received were not recorded in writing and furthermore no written information has been sent forthwith to the superior officers before the search.

27. Apart from this, he submits that there is no substantial compliance of Section 52A of the NDPS Act since the procedure as laid down under Section 52A has not been followed, which is a mandatory requirement in view of the law laid down by the Hon'ble Apex Court in the case of Bharat Aambale vs. State of Chhattisgarh (Supra). He submits that though non compliance of the procedure as prescribed under Section 52A will not vitiate the trial but the same may be taken into consideration to draw an inference that there are the reasonable grounds that the applicant is not guilty of the offence as alleged.

28. Apart from this, Mr. Vinod Sharma further submits that the applicants have no previous criminal history and if the applicants are enlarged on bail then there is less possibility that they will commit the offence while on bail. He submits that since there is no proper substantial compliance of Section 42 and 52A of the NDPS Act and furthermore the applicant have no previous criminal history, therefore, the twin conditions as stipulated under Section 37 of the NDPS Act are fulfilled and, as such, the applicants deserve for bail.

29. Counter affidavit has been filed by the prosecution and Mr. Pankaj Joshi, learned A.G.A. vehemently oppose the bail application by submitting that in view of Section 37 of the NDPS

Act the applicants are not deserve for bail since the alleged contraband, which is shown to be recovered from the present applicants is commercial one.

30. Apart from this, he submits that there was no need of recording the complaint in writing in view of Section 42 and this requirement is only mandatory if the information relates to the offence relating to the NDPS Act.

31. This argument is not acceptable simply for the reasons that if the search was conducted on a secret information received then it is necessary to record such information in writing in terms of Section 42 of NDPS Act.

32. Mr. Pankaj Joshi further submits that even if there is no proper substantial compliance of Section 52A of the NDPS Act then it will not vitiate the trial in view of the law laid down by the Hon'ble Apex Court in the case as referred above.

33. This court is fully agreeable with the submissions as advanced by the learned A.G.A., however, this court is of the view that certainly any procedural lapse in non-compliance of Section 52A of the NDPS Act will not vitiate the trial but since in view of the judgment of the Hon'ble Apex Court in the case of Bharat Aambale vs. State of Chhattisgarh the evidence collected under Section 52A are primary evidence in view of Section 52A

(iv) of NDPS Act then this aspect can be looked into while considering the bail application and if there is no proper substantial compliance of Section 52A then this aspect may be taken into consideration to examine whether there are the reasonable grounds that the applicant is not involved in the commission of the crime. Even otherwise, as it appears from the record there is no proper substantial compliance of Section 42 of

the NDPS Act, therefore, this court is primarily of the view after considering the submissions as advanced by the learned counsel for the applicants and the learned A.G.A. that there are the reasonable grounds available that the applicants are not guilty of the offence as alleged to be committed.

34. The other condition, which is required to be considered in view of Section 37 of the NDPS Act is that the applicants have no previous criminal history and if the applicants are admitted for bail then this court is of the view that the applicants while on bail will not likely to commit any such offence, however, while admitting the applicants on bail some stringent conditions may be imposed.

35. After hearing the arguments of learned counsel for the parties and in view of the observations as made above, this court is of the view that since the twin conditions as stipulated under Section 37 are fulfilled, therefore, both the applicants deserves for bail.

36. Accordingly, without expressing any opinion on the merit of the case the bail application is allowed.

37. Let both the applicants namely Pankaj Singh Kuwar and Manish Singh Rana be released on bail on furnishing their personal bond and two sureties each of the like amount to the satisfaction of the court concerned in relation to FIR No. 0040 of 2024, P.S. Joshimath District Chamoli.

38. It is made clear that after being released on bail if the applicants found to be indulged in any such criminal activity of the same nature the prosecution is directed to apprise this court immediately by moving an application for cancellation of bail.

39. Apart from this, after being released on bail the applicants will cooperate with the trial and will not seek any unnecessary adjournment.

(Rakesh Thapliyal, J.)

22.05.2025 PR