Standing Orders On Sampling Of Narcotic Drugs Must Be Respected By Probe Agencies, Can’t Be Rendered Optional For Compliance: Delhi High Court

The Delhi High Court has said that the standing orders on sampling of narcotics drugs issued by the Narcotics Control Bureau and Union Government must be respected by the probe agencies and that they cannot be rendered optional for complaince.

“Therefore, in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is 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,” Justice Anish Dayal said.

The court observed that the procedures prescribed in the standing orders are based on “certain logic” which ought to be respected by the investigating agencies or else it would be a “worthless piece of paper.”

The court made the observations while suspending the sentence awarded to a 38-year-old Zimbabwe citizen, pending the hearing of her appeal in an NDPS case.

She was convicted and sentenced in 2021 to rigorous imprisonment of 10 years with a fine of Rs.1 lakh for the offence punishable under sections 22 (c) and 23 (c) of NDPS Act. As per the nominal roll, the foreign national had undergone 4 years, 11 months and 18 days in custody as on March 20.

It was her case that the sample collection by NCB was not as per the established standing orders. It was submitted that the contraband was admittedly seized from two separate bags in two parts of the suitcase belonging to the foreign national and the sample was collected after the contents were mixed.

On the other hand, the counsel representing NCB submitted that there was no requirement of section 50 of NDPS Act (conditions under which detained persons must be searched) to be complied with considering that the search was not made from the foreign national but from her suitcase.

Granting relief to the foreign national, Justice Dayal said that prima facie, the results of two samples drawn were not completely placed on record.

“Also, the fact that there was evidently a mix of both the packets which were seized, separate sampling as per the Standing Order was not done. However, these and other contentions would have to be considered at the stage of appeal, although provide sufficient ground for the appellant to be released on suspension of sentence having undergone more than half of sentence,” the court said.

Noting that sampling of narcotics drugs ought to be done in compliance of Section 52A of NDPS Act and not at the time of seizure, Justice Dayal said:

“The lack of compliance of these provisions necessarily imports an element of “doubt”, moreover a “reasonable 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 that what prejudice is caused to the accused, had to be shown by the accused.”

The court suspended the sentence of the Zimbabve national observing that she had undergone a substantial period of sentence and the appeal is likely to take some time for hearing, besides the fact that she may have a case to argue on the issue of defective sampling at the time of seizure.

Title: MS. BETTY RAME v. NARCOTICS CONTROL BUREAU

Citation: 2023 LiveLaw (Del) 477

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