In BA 253 of 2023 - DEL HC- Violation of Sec 52A of NDPS Act vitiates sample collection procedure; harmonious and combined reading of Standing Order 1/88 and Section 52A construes reasonable time, says Delhi High Court
Justice Jasmeet Singh [18-05-2023]

Read Order- Kashif v Narcotics Control Bureau

Simran Singh

New Delhi, May 18, 2023: In a bail application under Section 8, 22 (c), 23 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (NDPS Act), the Delhi High Court has stated that the application before the Magistrate for drawing sample of a narcotic drug or psychotropic substance under Section 52 A of the NDPS Act should be made within 72 hours.

“It cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame.” observed the Court while stating that such an application depends on the facts and circumstance of each case.

The applicant stated that there was a violation of Standing Order 1/88 in drawing of Samples as neither the seizure memo was prepared nor sampling was done on the spot which was a mandate upon the investigating agency as per Clause 1.5 of the Standing Order 1/88.

The Court stated that even though Section 52A NDPS does not give a time frame within which application has to be made for collection of sample to the magistrate but the time frame was provided in Standing Order 1/88 and that too, only in the context of sending the sample to Forensic Science Laboratory.

The Bench stated that it cannot be the intent of the legislature that since no time limit was mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband was the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate was of utmost importance.

The Bench navigated through Clause 1.5 and 1.13 of the Standing Order 1/88 which stated that the samples should be sent either by insured post or through special messenger duly authorised for the purpose and despatch of samples by registered post or ordinary mail should not be resorted to. It was said that the samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.

The Court emphasised on the fact that a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS construes that a reasonable time must be read into section 52A(2) for making an application for drawing the sample and certification before the Magistrate while granting bail to the applicant. It was further stated that violation of Section 52A of the NDPS Act vitiated the sample collection procedure, benefit of which the applicant must accrue.

The Bench was of the view that non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering. The Court noted that the sample was kept in the custody of the prosecuting agency for more than one and a half month, thus, raising doubt with regards to tampering of the same.

The Court further noted that the application of drawing sample and certification of seizure memo under Section 52A was filed after 51 days from the period of last seizure “A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no reasons have been furnished by the Respondent for the delay of 51 days for moving an application under section 52A NDPS.”

With the above observation, the Court granted bail to the applicant, however, clarified that the same would not have an bearing in deciding the merits of the case.