NDPS Act | Non-Compliance With S.52A Does Not Automatically Entitle Accused To Bail, Stringent Conditions For Bail U/S 37 Still Apply: Bombay HC

The Bombay High Court recently held that an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 would not become entitled to bail merely because samples sent for forensic analysis were not drawn in front of a magistrate.

Justice MS Karnik refused bail to a man arrested for allegedly possessing commercial quantity of Codeine observing that the stringent conditions for bail under section 37 would continue to apply even if procedure prescribed under section 52A for drawing samples is not followed.

“At the stage when the court is concerned with the question of granting or refusing bail, this cannot be the sole consideration. It may be one of the relevant considerations but cannot be the sole consideration on the basis of which the moment it is shown that the procedure under Section 52A of the NDPS Act is not followed, the accused automatically becomes entitled to bail as a matter of right. The rigors of Section 37 of the NDPS Act would continue to apply”, the court held.

As per section 52A(2) and section 52A(3), when seized contraband is forwarded to the officer-in-charge of the nearest police station, the officer must draw samples from the seized good in the presence of a magistrate who shall then certify the correctness of the magistrate.

Prosecution’s case

On September 17, 2021, the Anti-Narcotics Cell, Ghatkopar received secret information about a person carrying contraband substances near the Ghatkopar Mankhurd link road public toilet. The police apprehended the accused Mukesh Chaudhari at the scene, and subsequent searches led to the recovery of 200 bottles of cough syrup (Chlorpheniramine Maleate and Codeine Phosphate syrup). As per the label, every 5 ml of the syrup contained 10 mg of Codeine Phosphate.

Later, the accused revealed the existence of a significant quantity of cough syrup hidden in a shop in Barfpada, Virar East, Palghar, leading to the discovery of 7700 bottles of similar cough syrup. The applicant was arrested for offences under sections 8(c) (possession of contraband) and 22(c) (punishment for possession of commercial quantity of contraband) of the NDPS Act. Thus, he filed the present bail application.

Arguments

Advocate Mithilesh Mishr for the applicant argued that the provisions of Section 52A of the NDPS Act had not been strictly followed as the samples sent to the Central Forensic Science Laboratory were not drawn in front of a Magistrate. Non-compliance with Section 52A warranted the applicant's release on bail, he argued.

APP Rutuja Ambekar for the State contended that the samples were drawn in the presence of panchas and immediately sent to the State Forensic Science Laboratory for analysis. She emphasized that the chemical analysis confirmed the presence of the contraband substances. She argued question of compliance with Section 52A should be addressed during the trial.

Court's Verdict

Section 52A of the NDPS Act deals with the disposal of seized narcotic drugs and psychotropic substances. This section allows the Central Government to specify substances that must be disposed of quickly due to their hazardous nature. The court highlighted that the Act requires an application to be made to a Magistrate for certification of the inventory and photographs of seized substances or for drawing samples.

Section 52A(4) provides that regardless of the provisions of the Evidence Act and CrPC, the trial court must consider inventory, photos of contraband, and any list of samples certified by the magistrate under section 52A(2) as primary evidence of the offence even if seized articles are disposed of and cannot be produced in the trial.

The court highlighted two likely scenarios that may arise if the prosecution fails to draw the samples in the presence of the magistrate as given in Section 52A(2). In the first situation, if the seized substance is in the custody of the investigating agency and is not yet destroyed, the agency can still follow the full procedure under Section 52A before disposal and the only question would be that of delay, the court said.

The second scenario pertained to cases where the samples are drawn without the presence of a magistrate, and the goods are subsequently destroyed with the magistrate's permission. In such instances, the prosecution would not be able to rely on the samples as primary evidence, as they weren’t drawn in front of a magistrate, the court said. However, the court emphasized that the prosecution’s case may not be entirely destroyed as it could still establish charges against the accused using other available evidence, such as the testimony of credible and reliable witnesses.

The court emphasized that the evaluation of evidence in the trial is crucial in such cases. The court held that the absence of compliance with section 52A may be one of the factors, but cannot be the only factor to grant bail to the accused.

The court referred to Shivaraj Satpute v. State of Maharashtra in which a co-ordinate bench considered facts and circumstances apart from violation of Section 52A of the NDPS Act while granting bail.

The court opined that the failure to comply with Section 52A did not automatically entitle an accused to bail. Instead, Section 37 of the NDPS Act must be followed. The court can grant bail only when it is satisfied that the accused is likely not guilty of the offense and is unlikely to commit further offenses while on bail, the court held.

Addressing the applicant’s claims of breaches in Sections 42 and 50 of the NDPS Act, the court scrutinized the evidence and found no substantial merit in the submissions. Consequently, the court rejected the applicant's bail application.

Case no. – Bail Application No. 54 of 2022

Case Title – Mukesh Rajaram Chaudhari v. State of Maharashtra