Application For Drawing Sample U/S 52A Of NDPS Act Should Be Made Within 72 Hours, Can’t Be Moved At Whims And Fancies Of NCB: Delhi High Court

The Delhi High Court has said that the application for drawing sample of a narcotic drugs or psychotropic substance before the concerned Magistrate under section 52A of NDPS Act should be made within 72 hours. 

Justice Jasmeet Singh observed that such an application cannot be moved at the “whims and fancies” of Narcotics Control Bureau, being the prosecuting agency.

Observing that the reasonable time to make such an application to the Magistrate depends on the facts and circumstances of each case, the court said:

“However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame.”

The court observed that Section 52A of NDPS Act does not give a time frame within which application has to be made for collection of 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.

“It cannot be the intent of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance,” the court said.

Clause 1.13 of the standing order states that the samples should be sent either by insured post or through special messenger duly authorized for the purpose and that such samples must be dispatched to the FSL within 72 hours of seizure to avoid any legal objection.

Justice Singh said that a harmonious and combined reading of the Standing Order 1/88 and Section 52A construes that a reasonable time must be read into the provision for making an application for drawing the sample and certification before the Magistrate.

The court made the observations while granting bail to one Kashif in a case registered under sections 8, 22(c), 23(c) and 29 of NDPS Act.

It was his case that there was a violation of the Standing Order 1/88 in drawing of the seized samples and that neither the seizure memo was prepared on the spot nor sampling was done which is mandated upon the investigating agency.

Granting bail to the accused, the court held that violation of Section 52A of NDPS Act vitiates the sample collection procedure, benefit of which must accrue to Kashif.

“Hence, I am of the view that non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering,” the court said.

It noted that the sample in the case was kept in the custody of the prosecuting agency for more than one and a half month, thus, raising doubt with regards to its tampering.

Noting that the application for drawing of sample and certification of seizure memo under section 52A was filed after 51 days from the period of last seizure, Justice Singh said:

“A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no reasons have been furnished by the Respondent for the delay of 51 days for moving an application under section 52A NDPS Act.”

Title: KASHIF v. NARCOTICS CONTROL BUREAU

Citation: 2023 LiveLaw (Del) 418

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