In BAIL APPLN. 3718/2022-DEL HC- Duration of 51 days not reasonable time period for submitting application u/s 52A of NDPS Act for drawing of sample: Delhi HC grants bail to accused as sample collection procedure stood vitiated
Justice Jasmeet Singh  [22-05-2023]

Read Order: TAMIR ALI v. NARCOTICS CONTROL BUREAU 

Tulip Kanth

New Delhi, May 23, 2023: Noting the fact that there was a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days and no justification for the delay of 51 days in filing the application under section 52A of the NDPS Act was given, the Delhi High Court has granted bail to an accused subject to furnishing personal bond and surety bond in the sum of Rs 25,000 each.

The Single-Judge Bench of Justice Jasmeet Singh referred to the earlier order in Kashif v. Narcotic Controls Bureau, wherein he had held that 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.

The facts of the case suggested that a packet was seized from the office of DHL Express containing 13,200 strips of Tramadol tablets hidden in 11 lace rolls.  The contraband was seized, sealed and deposited.The accused tendered a statement wherein he disclosed that he booked the parcels of NRx tablets to USA on the directions of the Applicant i.e, Tamir Ali and Kashif.

NCB team reached Lucknow to arrest the Applicant who was apprehended. The Applicant named three of his associates and said that he packed these drugs into lace rolls and food items. These packed items were sent to Accused to send these parcels to USA.

The applicant approached the High Court seeking bail in respect of case registered under section 8/22(c)/23(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Applicant’s counsel had restricted his submissions to violation of Standing Order 1/88 and Section 52A of NDPS Act for delay in making an application to the Magistrate for drawing the sample.

The issue before the Bench was whether the Standing Order 1/88 and Section 52A NDPS Act  Act stood violated in the present case and the reasonable time for filing an application before the Magistrate under section 52A.

The Bench further noted, “I have already in a connected matter, Kashif v. Narcotic Controls Bureau in Bail Appln. 253/2023 (2023:DHC:3438) held that the ambiguity between Standing Order 1/88 and Section 52A is to be resolved through a harmonious reading of the two. Application under section 52A should be made within reasonable time for certification and drawing of sample.”

Noting the fact that the collection of a sample and the certification under section 52A of the NDPS Act was made 51 days after the last seizure, the Bench opined, “The duration of 51 days cannot be considered a reasonable time period for submitting an application under section 52A NDPS for drawing of sample.”

The Bench also placed reliance upon the judgment in Rishi Dev @ Onkar Singh v. State which explained the rationale behind a stringent time frame for sample collection by stating that there is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing.

Considering such precedent, the Bench held that there was a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days. Additionally, the Respondent had failed to provide any justification for the delay of 51 days in filing the application under section 52A.

“I am of the view that there is violation of section 52A in the present case. The sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period. The benefit of the said violation must accrue to the Applicant”, the Bench said while granting bail to the accused-applicant.