NDPS Act | Should Sample Be Drawn On Spot Or In Magistrate's Presence As Per Sec. 52A? Supreme Court Reserves Judgment

The Supreme Court recently concluded the two-day hearing on an appeal filed by the Narcotics Control Bureau against the May 18 order of the Delhi High Court, wherein the Court 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 Magistrate. This was challenged by the NCB 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 on November 18 reserved the judgment. But they did not cancel the bail granted to the Respondent (original petitioner-Kashif) by Justice Jasmeet Singh of the High Court on grounds that there was a delay of 51 days in moving the Section 52A, which is mandatory. The High Court granted bail on the grounds that there was a violation of Standing Order 1/88 in the drawing of Samples. The Court stated that neither the seizure memo was prepared on the spot nor sampling was done 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 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. 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.Arguments of the NDPSSolicitor General Tushar Mehta (for NCB) said that the view taken by the Court in Mohanlal was not applicable in the present contet.Mehta took the Court through the Statutory Direction (Standing Order 1/88) issued under Section 4(3) of the NDPS Act. He submitted that as per Clause 1.5 of the Standing Order 1/88, the samples must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. He added that the samples are then sent by the seizing officer of the Central Government (Customs/NCB.,etc) to one of the laboratories. Mehta also referred to 1.13 (mode and time limit for dispatch of sample to Laboratory) of Standing Order 1.88, which states that the samples should be sent either by insured post or through a special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.Mehta submitted that before Section 52A, for the pre-trial disposal of drugs, recourse to the provision of Section 451 of the Code of Criminal Procedure is taken along with Section 110 of the Customs Act read with the Government of India's notifications. However, for disposal, filing of a Chargesheet is the condition precedent along with the receipt of the FSL report. He pointed out that a need was felt to insert a provision that would specifically provide for disposal as the NDPS Act did not provide for the same and one had to resort to Standing Orders. Therefore, it was inserted through an amendment in 1989. Referring to the Lok Sabha debates as no Statement of Objects and Reasons was available, Mehta said: "Section 52A is only referable to '3' [which is] procedure for pre-trial disposable. That is the limited purpose of Section 52A. It does not wipe away the evidence collected, sampled, and sent to the laboratory, the report received and the evidence proved." Mehta stated that Mohanlal's judgment was given on the backdrop of a public interest litigation which was that whatever drug is seized is not disposed of. As a result, it remains in police stations or godowns. That's why, the Supreme Court passed the judgment that the disposal of the drug is done expeditiously. In Mohanlal, the issue framed by the Supreme Court was: "Pilferage of the contraband goods and their return to the market place for circulation being a major hazard, this Court appointed Mr. Ajit Kumar Sinha, Senior Advocate, as Amicus Curiae, with a view to making a realistic review of the procedure for search, disposal or destruction of the narcotics and the...

NDPS Act | Should Sample Be Drawn On Spot Or In Magistrate's Presence As Per Sec. 52A? Supreme Court Reserves Judgment

Gursimran Kaur Bakshi

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