[NDPS Act] Must Follow Procedure For Drawing, Storing, Testing & Disposal Of Samples: Kerala HC Grants Bail For Procedural Lapse By Detecting Officer

In the facts of the case, the police officer searched and seized contraband in from two different zip lock bags from the petitioner and pillion rider, and without drawing a representative sample from both the covers, the contraband was mixed and put in a single cover without the permission of a Magistrate.

Justice C S Dias found that it was mandatory to follow the procedure laid down for drawal, storage, testing and disposal of samples seized as per Section 52 A (procedure for disposal of seized narcotic drugs and psychotropic substances) of the NDPS Act and Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022.

“it is mandatory for the Investigating Officer to prepare an inventory of the seized narcotic drugs/psychotropic substances/controlled substances with all such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, and then make an application to the Magistrate to permit him to draw the representative samples of such contraband in the presence of the Magistrate so as to certify the correctness of the inventory so prepared. If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized”, stated the Court.

The petitioner was the first accused of a crime for allegedly committing offences under Section 22 (c) (punishment for contravention in relation to psychotropic substances involving commercial quantity) and 29 (punishment for abetment and criminal conspiracy) of the NDPS Act. He has approached the Court with a bail application.

The specific allegation was that police intercepted the motorcycle ridden by the petitioner, searched and seized 36 grams of contraband from the petitioner and 24.90 grams of contraband from the pillion rider who was arrayed as the second accused.

The Counsel for the petitioner submitted that the petitioner had offered a ride to the second accused and child in conflict with the law when the police stopped their motor vehicle. It was alleged that due to an altercation with the police, a false case was registered against the petitioner. It was submitted that the petitioner was a differently abled man who had no criminal antecedents and had been in custody since July 2023.

Further, it was submitted that the police seized contraband kept in zip lock covers from the body of the petitioner and second accused, and without drawing representative samples from both the covers, they allegedly mixed the contraband and put it in a single cover contrary to Section 52 A NDPS Act and Rules 3, 5, 8, 9 and 10 of the Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022.

On the other hand, the Public Prosecutor contended that failure to draw representative samples from the two covers seized from the petitioner and second accused was only a procedural infraction and bail should not be granted since the contraband seized involved commercial quantity.

The Court found that the detecting officer mixed the contraband seized from the petitioner and the second accused and put them in one single cover without following the mandate of law. “It is to be remembered that it is after cleavage of opinion on the interpretation of the Standing Orders/Instructions on the procedure to be followed in the drawal, storage, testing and disposal of samples seized under the Act, that the Central Government has framed the above Rules, making it mandatory to draw representative samples from each seized package/container”, added the Court.

Relying upon various precedents, the Court stated that the mixing of contents and the failure to send representative samples would cause prejudice to the rights of the accused. It stated that the detecting officer without the permission of the Magistrate and without drawing samples mixed the samples and put them in a single cover.

“When the statutory provisions mandate a particular procedure to be followed, the Detecting Officer is duty-bound to follow the prescribed procedure. No person can assume the nature of the substance on speculation and conjectures. It is to ensure a fair trial that the legislature has incorporated the above safeguards in the above provisions”, stated the Court.

The Court found that even though the sample seized from the petitioner might involve commercial quantity and the rigour under Section 37 of the Act would apply for denial of bail. However, the Court found that procedural infraction of the statutory provisions by the Detecting Officer had caused prejudice to the petitioner.

Accordingly, the Court allowed his bail application.

Counsel for petitioner: Advocates K.Mohammed Rafeeq, Bibin Mathew, P.M.Mathew, Amarnath R Lal, Sanaldev E.P. ,Vishnumaya Anandan, Sonymon Antony, Ajmal V. Karim

Counsel for respondents: Special Public Prosecutor P Narayanan, Senior Public Prosecutor Neema T V

Citation: 2024 LiveLaw (Ker) 155

Case title: Vaisakh v State of Kerala

Case number: BAIL APPL. NO. 66 OF 2024

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