Narcotic Control Bureau v/s Kashif

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Government of India. Official text of NDPS Act available from Ministry of Law and Justice, Government of India. The Act details provisions covering control and regulation of narcotic drugs and psychotropic substances, as in Section 52A to details disposition of seized narcotics.

Section 52A of NDPS Act: A Legal Safeguard or a Practical Challenge?

Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, deals with the destruction of seized drugs. The law allows the law enforcement authorities to destroy or dispose of the seized narcotic drugs or psychotropic substances if they are not required for evidence in court. The section ensures that such drugs are not left in police custody or in stores so as not to be misused or deteriorate. Still, the proper documentation and authorization precede destruction.

Relevance of Section 52A

1. Misuse of Seized Drugs: The main issue of confiscated narcotic drugs is that they might be diverted and sold back to the black market. Section 52A prevents such misuse by ensuring that drugs seized are disposed of as soon as the trial is over. It decreases the chances of illicit drugs re-entering the market, thus stopping them from causing further damage to society.
    
2. To Make the System Transparent and Accountable: The judicial system is further required to oversee the disposal process so as to make the system even more transparent and accountable. The drugs get disposed of as ordered by the court, thereby totally ruling out any scope for corrupt practices, theft, or improper handling on the part of law enforcement agencies.
    
3. Impact on Judicial Procedure: Section 52A also throws into limelight the very crucial role that the judiciary plays in supervising the whole process of seizure and disposal. The courts have to ensure that the drugs seized do not fall into the wrong hands or get lost in the judicial process. This will thus preserve the integrity of the investigation and ensure that justice is served without evidence tampering.
    
4. Impact on Investigation and Prosecution: Proper disposal and handling of seized drugs will help streamline investigations and prosecutions. Once the drugs are no longer needed as evidence, destruction ensures that they do not interfere with active cases or legal processes. This also allows for proper storage of new evidence that may be seized later.
    
5. Public Health and Safety: This way, the destruction of illicit drugs, Section 52A ensures that public health is safeguarded. Narcotic substances left undestroyed often fuel addiction and trafficking problems. Destruction processes curtail the supply of illegal drugs to vulnerable sections of society.
    
6. Destruction Process and Legal Provisions: The destruction or disposal process must follow a well-defined procedure so that no wrongdoings take place. Section 52A acts as a safeguard, as it gives the details of the proper protocols for the disposal of drugs, thus ensuring that the entire process remains within the bounds of the law.
    
7. Judiciary's Role in Preserving the Fairness of Trial: Since courts are supposed to authorize the disposal of seized drugs, judiciary's oversight preserves the fairness of the trial. Without the court's order, law enforcement cannot dispose of the drugs, ensuring that any evidence used in a legal proceeding is not prematurely destroyed or lost.
    

The Hon'ble Delhi High Court's landmark judgment on section 52A of NDPS Act

1. In the matter of Kashif vs NCB, Bail Application no. 253/2023, the High Court said, ... Para 17. If the argument of the respondent is accepted that Section 52A of the NDPS Act does not contemplate a timeframe within which the application is to be moved, the same would be contrary to the legislative intent. It is settled principle of law that where a statute does not provide a particular time limit, the same can be inferred from the guidelines and/or has to be within a reasonable time.
    
2. In Mohanlal (supra), the Hon'ble Supreme Court in para 19 has opined that "…The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay…". What is reasonable has been left open by the Apex Court in the said judgment.
    
3. It cannot be the intent of the legislature that since no time limit is 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 is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance.
    
4. Thus, 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.
5. Respondents' have placed reliance on the judgment of Arvind Yadav(supra), passed by a coordinate bench of this court, which held that violation of section 52A due to absence of Magistrate at the time of drawing the sample did not vitiate the trial and hence, the accused is not entitled to bail.
    
6. Though the court in Arvind Yadav (supra) held that the trial is not vitiated in the facts and circumstances therein, but the pertinent question arises whether it gives a reasonable apprehension that the seized sample was not properly preserved in custody of the prosecuting agency and/or tampered with?
    
7. The reason for strict time frame and collection of sample has been elucidated by a coordinate bench of this court in the judgment of Rishi Dev @ Onkar Singh v. State (2008:DHC:1513) in CRL.A. No. 757/2000 decided on 01.05.2008 wherein it was observed as under:
• "8.…The above passage shows 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. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event.
• … …
• This Court is unable to agree with the approach adopted by the trial court, especially its observations highlighted above. The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better." (emphasis supplied)
   
8. Hence, I am 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.
    
9. In the present case, 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.
    
10. Another reason which persuades me to take this view is that once the Apex Court has held in Mohanlal (supra) that the application under 52A has to be made without any undue delay, there should not be a reason for delaying the filing of application.
     
11. The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case, the same has not been moved, the reasons for delay must be explained by the authorities.
     
12. What is reasonable time depends on the facts and circumstances of each case. However, 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.
     
13. In the present case, the application for drawing of sample and certification of seizure memo under section 52A NDPS was filed on 22.04.2022 i.e., after 51 days from the period of last seizure on 02.03.2022.
     
14. 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.
     
15. In view of the above discussion, I hold that violation of Section 52A vitiates the sample collection procedure and the benefit of the same must accrue to the Applicant.
     
16. The application by the respondent under section 52A was filed after a delay of 51 days. At that time, the applicant did not object. However, the same being a legal objection can be raised at any stage.
     
17. The applicant has been in custody since 07.03.2022 and more than a year has passed since then. No further custodial interrogation of the Applicant is required. No recovery was made from the Applicant or at his instance. Therefore, the embargo of Section 37 NDPS is not applicable on the Applicant.
     
18. The triple test i.e.,
    1. flight risk;
    2. tampering with evidence;
    3. influencing the witnesses can be taken care of by imposing stringent bail conditions.
        
19. For the aforesaid reasons, the application is allowed and the applicant is granted bail on the following terms and conditions:
    1. The Applicant shall furnish a personal bond and a surety bond in the sum of Rs. 25,000/- each, to the satisfaction of the Trial Court;
    2. The Applicant shall appear before the Court as and when the matter is taken up for hearing;
    3. The Applicant shall provide his mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The Applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail;
    4. The Applicant shall join investigation as and when called by the I.O. concerned;
    5. In case the Applicant changes his address, he will inform the I.O. concerned and this Court also;
    6. The Applicant shall not leave the country during the bail period and surrender his passport, if any, at the time of release before the Trial Court;
    7. The Applicant shall not indulge in any criminal activity during the bail period;
    8. The Applicant shall not communicate with or come into contact with any of the prosecution witnesses or tamper with the evidence of the case.
        
20. The observations made hereinabove are only for the purposes of deciding the present bail application. They shall not have any bearing on the merits of the case.
21. The application is allowed and disposed of.
22. The documents handed over in court are taken on record.

Narcotic Control Bureau v/s Kashif ; Section 52A : NDPS Act : Supreme Court : best criminal lawyer in delhi : ndps lawyer in delhi : Rohit dandriyal:advocate Rohit Dandriyal:

The Hon'ble Supreme Court's observations:
The Supreme Court on December 20 overturned the Delhi High Court's judgment declaring compliance with Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act to be mandatory. The Court clarified that Section 52A, introduced in 1989 to ensure the prompt disposal of seized narcotics in line with international conventions, primarily establishes a procedural framework. It held that any delay or lapse in following the procedure prescribed would constitute a procedural irregularity but not itself render evidence inadmissible.

The Court made it plain that a procedural lapse under Section 52A, whether it be delay in taking samples or delay in depositing the same, will not alone be a justification for bail unless the stringent conditions under Section 37(1)(b) NDPS Act are fulfilled. The further reaffirmed the aspect that section 37 required, while providing bail, there would be mandatory findings under this very section. The judgment came through a bench led by Justice Bela M. Trivedi and Justice Satish Chandra Sharma who was dealing with the NCB's appeal filed against the May 18 Delhi High Court order of granting the bail to accused Kashif.

Although the Supreme Court overturned the interpretation of Section 52A by the High Court, it did not cancel Kashif's bail and instead granted the High Court four weeks to consider the matter. The NCB had challenged the High Court's reliance on procedural delays, including a 51-day delay in moving an application under Section 52A, as a ground for bail.

The High Court had relied on Union of India v. Mohanlal (2016),wherein it was held that the order of Standing Order 1/88 directs sampling forthwith after seizure. The Supreme Court clarified that although procedural compliance is essential, delays have to be viewed in the context and that provisions such as Section 52A do not fix strict time lines but allow for reasonable construction.

The Narcotic Drugs and Psychotropic Substances (NDPS) Act is among India's most powerful legal frameworks for addressing drug-related offenses, with support from top NDPS bail lawyer in Delhi.

Written By:

• Harsh Pandey: The author is a law student from a prominent university and currently a law intern in the Chamber of Advocate Rohit Dandriyal. He is a diligent researcher who specializes in writing articles on cases involving the Narcotic Drugs and Psychotropic Substances Act (NDPS).
• Ansu Nishad: The auther has been working in the esteemed Chamber of Advocate Rohit Dandriyal for over a year, gaining extensive experience and demonstrating a strong command of legal principles and practices.
• Deepak Giri: The author is a law student enrolled at a reputable university and is currently gaining practical experience as a law intern in the Chamber of Advocate Rohit Dandriyal, a distinguished practitioner known for his expertise in NDPS Cases. With a keen interest in criminal law, the author has developed strong research skills and regularly contributes scholarly articles focusing on the legal intricacies and evolving jurisprudence surrounding NDPS Cases.

Under Guidance of Advocate Rohit Dandriyal