Brief Facts
- The Delhi High Court granted bail to the respondent solely on the ground of belated compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High Court held that there was non-compliance of Section 51A within reasonable time, which gave rise to apprehension that sample could have been tempered with, and that in case of wrongly drawn samples, the benefit of doubt had to accrue to the accused.
- The present appeal was filed before the Supreme Court challenging the said order.
Issues
- Whether an accused charged with offences under the NDPS Act can be granted bail solely on the ground of non-compliance or delayed compliance of Section 52A of the Act?
- Whether the High Court can grant bail in NDPS cases without recording satisfaction on the twin conditions under Section 37 of the NDPS Act?
Held
- The Hon’ble Supreme Court allowed the appeal and remanded the matter back for reconsideration. The Hon’ble Court held that the High Court had misinterpreted Section 52A of the NDPS Act and failed to comply with Section 37. The Hon’ble Court opined that any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The findings of the Court are as under:
- There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not be released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act.
- Sub-section (2) of Section 52A specifies the procedure as contemplated in sub-section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under sub- section (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution. The jurisprudence as developed by the courts so far, makes clear distinction between an “irregular proceeding” and an “illegal proceeding.” While an irregularity can be remedied, an illegality cannot be.
- Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-compliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act.
- None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act. On the contrary, as per the procedure laid down in the Standing Orders and Notifications issued by the NCB and the Central Government before and after the insertion of Section 52A till the Rules of 2022 were framed, the concerned officer was required to take samples of the seized contraband substances on the spot of recovery in duplicate in presence of the Panch witnesses and the person in whose possession the drug or substance recovered, by drawing a Panchnama. It was only with regard to the remnant substance, the procedure for disposal of the said substance was required to be followed as prescribed in Section 52A.
Relevant Para No.
- 8, 23, 24 and 35