BA1/513/2025
2025 Latest Caselaw 422 UK

Uttarakhand High Court

BA1/513/2025 on 15 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

                  Office Notes,
               reports, orders or
58SL.           proceedings or
        Date                                       COURT'S OR JUDGES'S ORDERS
 No              directions and
               Registrar's order
                with Signatures

                                    BA1 No.513 of 2025
                                    with
                                    BA1 No.556 of 2025
                                    Hon'ble Rakesh Thapliyal, J.

1. Mr. Vinod Sharma and Mr. Kamlesh Budhlakoti, learned counsel for the applicants.

2. Mr. Pankaj Joshi, learned AGA for the State.

3. On the previous date, Mr. Vinod Sharma, learned counsel for the applicants, placed reliance on some judgments of the Hon'ble Apex Court and Mr. Pankaj Joshi, learned AGA also placed before this Court the recent judgment of Hon'ble Supreme Court, the reference of which has already given in the order dated 05.05.2025.

4. In furtherance of the previous arguments, today, Mr. Vinod Sharma and Mr. Kamlesh Budhlakoti, learned counsel for the applicants submits that on plain reading of Section 52-A of the NDPS Act with Rule 8, 13, 14, 16 and 17, it is mandatory to the prosecution to follow the procedure i.e. after search and seizure, the materials have to be forwarded to the official in-charge of the nearest police station or to the officer empowered under Section 53 of the Act for the preparation of inventory of such material in Form-4 under Rule 8, then such inventory has to be presented before the concerned Magistrate for its certification and after certification as per Rule 13, the samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratory of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory as the case may be, for chemical analyses without any delay and such sample of seized drugs or substances shall be dispatched to Judicial Laboratory under the cover of Test Memo, which shall be prepared in Triplicate in Form-6. The procedure as prescribed under Rule 13 is read as under:-

"13. Despatch of sample for testing.

- (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay. (2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6. (3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer."

5. Learned counsel for the applicants further submits that after the receipt of the chemical analysis report, the officer incharge of police station or the officer empowered under Section 53 of the Act shall initiate action for disposal of contraband under Section 52-A of the Act. By referring these provisions, Mr. Vinod Sharma argued that the procedure as prescribed under Section 52-A read with Rules 8, 13 and 17 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 are mandatory and has to be strictly followed.

6. In response to this, Mr. Pankaj Joshi, learned AGA argued that though these provisions are mandatory and if there are lapse in following the procedure, then it would not vitiate the trial and will be the subject matter of the trial and such lapse cannot be looked into account at this stage, when the accused is praying for bail.

7. Mr. Pankaj Joshi, learned AGA, further submits that when the contraband is preserved then the procedure as prescribed under Section 52-A read with Rules 8, 13 and 17 is not required to be followed.

8. Such argument of Mr. Pankaj Joshi is out rightly rejected in view of the plain reading of Section 52-A of the NDPS Act read with Rules 8, 13 and 17 of the Rules of 2022. So far as the argument that the procedural lapse in following the procedure may not vitiate the trial, to some extent this argument is acceptable, but here the question is that if the accused is praying for bail and the recovered contraband, is commercial, then in such an eventuality, then whether such lapse can be looked into while dealing with the rider of Section 37 of NDPS Act, which provides twin conditions to be examined while dealing with a bail application.

9. On this Mr. Vinod Sharma submits by giving reference of Section 52 of NDPS Act, Section 50 of Cr.P.C and the corresponding provision under BNSS i.e. Section 47. By referring these provisions, he submits that if there is a procedural lapse in terms of Section 52-A read with the relevant provisions of the Rules of 2022 then that aspect can be looked into while dealing with the twin conditions, as stipulated in Section 37 of the NDPS Act.

On perusal of Section 37, the twin conditions are that

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) if 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.

10. Put up this matter on 19.05.2025.

(Rakesh Thapliyal, J.) 15.05.2025 R.Bisht