BREAKING| Non-Compliance Of S.52A NDPS Act Not Ground For Bail; Irregular Seizure Won't Make Evidence Inadmissible: Supreme Court

The Supreme Court today (December 20) overturned the judgment of the Delhi High Court which held that the procedure mandated under Section 52A is mandatory. The Court held that the purpose of the insertion of Section 52A laying down the procedure for disposal of seized narcotics drugs or psychotropic substances was to ensure the early disposal of seized contraband and substances. It was inserted in 1989 as one of the measures to implement and give effect to the international Conventions.

The Court stated: "Sub-section 2 of Section 52A lays down the procedure as contemplated in sub-section 1. Therefore any lapse or delay would merely be a procedural irregularity. Any procedural irregularity found to be in conducting search or seizure during the course of investigation or thereafter would not by itself make the entire evidence inadmissible. The Court would have to consider all circumstances...Any prima facie delay or lapse in compliance of Section 52A by itself would not be a ground to release the accused on bail unless the conditions mandated under Section 37(1)(b) have been found to have been satisfied." 

It also held that while granting bail to the accused, the Court must consider the provisions of Section 37 of the Act, which are mandatory in nature.

"Recording of findings as mandatory in Section 37 is sine qua non for granting bail to the accused involving in the offences under the Act," the Court said.

A bench of Justices Bela M. Trivedi and Satish Chandra Sharma pronounced the judgment in an appeal filed by the Narcotics Control Bureau (NCB) against the May 18 order of the Delhi High Court. On May 18, Justice Jasmeet Singh of the High Court while granting bail to one Kashif, observed that the seized samples of narcotic drugs or psychotropic substances under the Narcotics Drugs and Substance Act, 1985 (NDPS Act), should be forwarded to the laboratory within 72 hours. The High Court's judgment also held that the samples should be drawn under Section 52A in the presence of the Magistrate.

The Supreme Court has however not cancelled bail granted to Kashif and has given 4 weeks for the High Court to decide again. 

Background

The NCB challenged this before the Court which formulated the issue of law as: whether samples under the NDPS should be drawn on the spot of recovery or after an application under Section 52A has been moved and in the presence of a Magistrate.

A bench of Justices Bela M. Trivedi and Satish Chandra Sharma after hearing the matter for 2 days, reserved the judgment on November 18. The Court however did not cancel the bail granted to Kashif by the High Court on the grounds that there was a delay of 51 days in moving the Section 52A, which is mandatory.

The High Court granted bail because there was a violation of Standing Order 1/88 in the drawing of Samples. The Court stated that neither the seizure memo nor sampling was prepared on the spot, which is a mandate upon the investigating agency as per Clause 1.5 of the Standing Order 1/88.

Further, the High Court relied on Union of India v. Mohanlal (2016) and stated that as per the judgment, the application to the Magistrate for sampling has to be moved immediately after seizure. However, in the present case, the application under Section 52A for the drawing of samples was made after an "inordinate delay of around 51 days".

The court observed that Section 52A of the NDPS Act does not give a time frame within which application has to be made for the collection of the sample to the magistrate and that the time frame provided in Standing Order 1/88 is only in the context of sending the sample to FSL. But it is a settled principle of law that where a statute does not provide a particular time limit, the same has to be inferred from the guidelines and/or has to be within a reasonable time.

To be updated after the judgment is uplaoded.

Case Details: NARCOTICS CONTROL BUREAU v KASHIF., SLP(Crl) No. 12120/2024

Appearances: Solicitor General Tushar Mehta and Arvind Kumar Sharma, AOR (for NCB) & Adv Akshay Bhandari and Ashish Batra, AOR (for Respondent)