In BAIL APPLN 3805 of 2022- DEL HC- The sample was not a true representative and the composition of the mix was at a serious variance: Delhi High Court grants bail to 31-year-old woman arrested under NDPS Act, due to non-compliance with Standing Order
Justice Anish Dayal [02-06-2023]

Read Order: Amina v State of NCT of Delhi

Simran Singh

New Delhi, June 2, 2023- The Delhi High Court today granted bail to the petitioner who had sought quashing of FIR under Section 21, 25 and 29 of Narcotic Drug and Pyshchotropic Substances Act, 1985 (NDPS Act). The petitioner was a 31-year-old woman and was arrested on 27-09-2022 and had since been in judicial custody who had no previous involvements.

The Single-Judge Bench of Justice Anish Dayal stated that “The adherence to strict process under the NDPS Act has certain important function and purpose. The Hon‟ble Supreme Court has often reemphasized that considering the provisions of the NDPS Act are stringent in nature and provide twin conditions as a threshold for granting bail under Section 37 of the Act, compliance by the investigating agencies has to be necessarily precise and not ad hoc or half-hearted or truncated in nature.”

The issue which arose in this matter was:

1.  Whether there was a defect in the sampling procedure adopted by the investigating officer (IO) at the time when recovery and seizure, in this case, was effected.
2. Whether sampling ought to be done at the time of seizure or later in accordance with provisions of section 52A NDPS Act before the Magistrate.

While the accused submitted that the procedure for the sampling of seized materials was not in accordance with the mandate of the Standing Order issued by the Narcotics Control Bureau (NCB) and Standing Order (SO) issued by the Ministry of Finance, Government of India, it was contended by the prosecution that these issues were a matter of trial as also that the Standing Orders were not mandatory but directory in nature.

The Court referred to the case of a Supreme Court in Noor Aga v State of Punjab and a catena of other judgements which dealt with the same issue and had stated that “…total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department had been able to prove the charges against the delinquent official….A departmental instruction cannot totally be ignored….Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon…Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact.”

The Court on the issue of these SO not being mandatory, as contended by the State, referred to Gurbax Singh v. State of Haryana, which had observed while acquitting the accused stated that Section 52 of NDPS Act was directory but held that the provisions could not be ignored by the IO “..It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article…”

The Bench further referred to the Supreme Court case of Union of India v Mohanlal where the conflict was in the manner of ‘drawing a sample’ as was provided in Section 52A(2)(c) of NDPS Act and the Standing Order came to be considered. “No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order…”

The Bench opined that the Standing Orders had to serve a certain purpose having been issued by the NCB and Government of India and could not render optional for compliance to the investigating agencies. The procedures prescribed in the said orders were based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper and would naturally invoke a reasonable doubt relating to the process of sampling which was the most critical procedure to be carried out in order to ascertain the nature of the substance and its quantity.

“In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders.”

The Bench stated that the sampling ought to be done in compliance of Section 52A and not at the time of seizure. However, this had not been the scope of the discussion during the arguments in this matter and therefore was not being deliberated in detail. “The only purpose why this was being adverted to, was to emphasize that in this case the samples were drawn at the time of seizure and that too not in compliance with the Standing Orders.”

The court stated that the lack of compliance of these provisions necessarily imported an element of ‘doubt’. “This, therefore will segway into the issue of proving guilt, considering that the guilt of any accused has to be proved beyond reasonable doubt. It would therefore not be enough to contend, as is done by the prosecution that issues of non-compliance were to be considered at the time of trial and what prejudice is caused to the accused, had to be shown by the accused.”

The Court stated that “if such non-compliance provided reasonable ground for acquittal of an accused, a fortiori at the stage of granting bail, it would be even more important to consider this possibility, even if it is just a possibility. At the stage of granting bail, the accused was still not proved as guilty and was under trial and therefore deserves the benefit of doubt.”

The Bench noted that the seized contraband was contained in 2000 pudiyas, 100 each in 20 bags, were all emptied together in a plastic jar, was prima facie not in compliance with the process envisaged under the Standing Order. The procedure in compliance with the standing orders, could have been adopted, inter alia to make lots of a bunch of pudiyas together, as envisaged in the Standing Order. By mixing all the pudiyas together, the sample was not a true representative sample and the composition of the mix would therefore, would be at a serious variance.

“Even though these are issues which would have to be considered at the point of trial, it would still import an element of reasonable doubt in the sampling procedure undertaken.”

The Bench stated that on a prima facie assessment of the facts and circumstances, it was of the opinion that there were reasonable grounds to believe that the petitioner may not be guilty of the offence charged for, and further there was no material on record to show that she was likely to commit any offence while on bail. She had no previous involvements, and lived with her family including 3 minor children in Delhi. Consequently, the petitioner was directed to be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount subject to the satisfaction of  the Trial Court, further subject to some conditions.

“Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.”