[S.52A NDPS Act] Bombay High Court Grants Bail To Accused As Samples Collected In Front Of Magistrate Not Sent For Chemical Analysis

Justice S. M. Modak observed –

“learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer. So it is true that the directions in para no. 31(1) of the observations in case of Union of Indian Vs. Mohanlal were not followed. Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office.”

The case against accused Santosh Pandurang Parte came to light following a raid conducted at his farmhouse on March 17, 2021. During the raid, the Customs Dapoli Division, Ratnagiri, searched two rooms and found a plastic bag containing numerous plastic pouches filled with Ganja in one of the rooms. Further samples were also taken from the Ganja bags for analysis. Parte was arrested and complaint was filed before Special Judge, NDPS Satara. Thus, he filed the present bail application.

Advocate Mithilesh Mishra for Parte contended that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, which outlines the procedure for searching an accused person, was not adhered to during the raid. It was contended that the notice served to Parte did not adequately inform him of his rights, thereby leading to non-compliance. Even if nothing is found on the body of the accused, Section 50 of the Act needs to be complied with in letter and spirit, he argued.

Mishra argued that even though samples were also drawn before the Magistrate as contemplated under Section 52-A of the Act, the samples sent to the Chemical Analyzer were samples taken at the spot and not before the Magistrate.

Also Read: Mandate Of Section 52A NDPS Act Has To Be Duly Complied Before Disposal/Destruction Of Seized Narcotic Substances : Supreme Court

Mishra further submitted that as per Customs department, the sample consisted of dried green leaves and dried green flowering tops, whereas the Chemical Analyzer report mentions fruiting and flowering tops, leaves, shoots etc. He argued that the discrepancy violated the definition of Ganja as defined under Section 2 of the NDPS Act.

Mishra also contended that the search conducted by the Superintendent of Customs could not be considered impartial, as he belonged to the same department. Search is vitiated because no independent Gazetted officer was present, he said. Even though search was done in the farm house, the seizure and taking samples was undertaken in the office of the Customs at Dapoli, Mishra contended.

The prosecution argued that the issues raised by Parte could be appropriately addressed during the trial.

The court was not convinced by the arguments regarding notice under section 50 of the Act. However, the court acknowledged that samples taken before the Magistrate were not sent to the Chemical Analyzer, contravening the directions given in the case of Union of India v. Mohanlal. This non-compliance could have a significant impact on the trial proceedings, the court said.

The court relied on Supreme Court ruling in Simarnjit Singh v. State of Punjab, where the conviction was set aside as the court refused to accept analysis based on samples taken at the spot.

The court granted bail to Parte on the condition that Parte furnish a personal bond and surety bond amounting to Rs. 50,000. The court also directed him to appear at the Office of Customs in Dapoli on specific dates.

Case no. – Bail Application No. 4125 of 2021

Case Title – Santosh Pandurang Parte v. Amar Bahadur Maurya and Anr.