Delhi High Court
Sekeleti Doris vs Customs on 18 October, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 02nd September 2024
Pronounced on: 18th October 2024
+ BAIL APPLN. 3206/2023
SEKELETI DORIS .....Applicant
Through: Mr. J.S. Kushwaha and
Ms. Tanya Kushwaha, Advs.
versus
CUSTOMS .....Respondent
Through: Mr. Atul Tripathi, Sr.
Standing Counsel with Mr. V.K. Attri,
Mr. Amresh Jha and Ms. Priya Kumari,
Advs.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. This application has been filed by applicant under Section 439, Code of
Criminal Procedure, 1973 [“CrPC”] read with Section 37, Narcotic Drugs and
Psychotropic Substances Act, 1985 [“NDPS Act”] seeking regular bail in case
arising out of criminal complaint dated 09th June 2022, bearing File No.
VIII(AP)10/P&I/3290-B/ARRIVAL/2021, by Air Customs Officer, Terminal-
3, Indira Gandhi International Airport, New Delhi. Said complaint was filed
before the Special Judge (NDPS), Dwarka Court, New Delhi to take
cognizance of offences allegedly committed by the applicant under Sections
21/23/29 of the NDPS Act.
Factual Background
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2. As per the prosecution’s narrative, on 12th December 2021, information
was received that applicant would be arriving from Addis Ababa, Ethiopia to
Terminal-3, Indira Gandhi International Airport, New Delhi by Flight ET 688
and would be carrying narcotics, pursuant to which, two panch witnesses
were called by the Customs Authorities. At about 12:20 hours, applicant was
intercepted by matching her passport number and date of birth after she
crossed the Green Channel and was asked, in the presence of the panch
witnesses, whether she was carrying any narcotic substances on her person or
in her baggage to which, she replied in the negative.
3. Thereafter, notice under Section 50, NDPS Act was issued as well as
another notice under Section 102 of the Customs Act, 1962 [“Customs Act”]
was served upon the applicant; she was apprised of the fact that her personal
search as well as baggage search could be conducted in the presence of a
Gazetted Officer or a Magistrate to which, applicant gave her consent to be
searched by any lady Customs Officer, and her baggage can be searched by
any Customs Officer.
4. The applicant was directed to the Customs Preventive Room and her
personal search was done by the lady Customs Officer as well as search of her
handbag was done which revealed three unsealed plastic bottles containing
off-white thick liquid substances. A small quantity of the off-white-coloured
thick liquid was taken from each bottle and tested with the help of Field Drug
Test Kit. The samples from all three bottles tested positive for
“Methaqualone”. The plastic bottles were each weighed with the help of
weighing machine available in the Customs Preventive Room and the gross
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weight was found to be 958.55 grams, 634.69 grams, and 280.65 grams
respectively. Combined gross weight of the off-white-coloured thick liquid
was calculated and found to be 1,873.89 grams valued at approximately
Rupees 93.67 lacs.
5. Recovered contraband was seized under Section 43(a), NDPS Act read
with Section 110, Customs Act alleging violation of Sections 8/23, NDPS Act
on the belief that the contraband has been illegally brought to India.
6. Subsequently, the applicant was arrested on the same day i.e. 12th
December 2021 and was produced before the Court; applicant is in judicial
custody ever since.
7. Applicant moved the Court of Special Judge, NDPS Act, Delhi [“Trial
Court”] and vide order dated 28th April 2023, Trial Court dismissed the bail
application noting that commercial quantity of contraband was seized and
hence, embargo of Section 37, NDPS Act is triggered and as of that date,
hurdle of Section 37, NDPS Act was not crossed by the applicant. Hence,
applicant has moved the present bail application.
Submissions on behalf of Applicant
8. Planting of Drugs: Counsel for applicant contended that the statement
of the recovery witness PW-2 Ms. Ritu Rani was recorded before the Trial
Court on 09th April 2024 and 06th June 2024 and the pullandas were opened
and after opening, it was found that colour of the thick liquid in the bottle was
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light brown instead of off-white, and thus, same were planted on the applicant
in order to falsely implicate her.
9. Delay in filing Section 52A Application, NDPS Act: Further, it was
contended that applicant was apprehended on 12th December 2021 and the
application under Section 52A, NDPS Act was moved by the authorities on
24th December 2021 before the court for drawing samples. Thus, there was a
delay of 12 days in moving said application; same is in contravention with the
law which prescribes moving of the application under Section 52A, NDPS
Act within 72 hours of recovery of contraband.
10. Proforma Notice under Section 50, NDPS Act: It was contended that
a defective notice which was issued to the applicant under Section 50, NDPS
Act as the same did not indicating any ‘receiving’ rendered by applicant prior
to her search. Said notice served on the applicant is extracted as under:
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11. Defective Notice under Section 102, Customs Act: It was also
contended that the notice issued to the applicant under Section 102, Customs
Act was defective, in that it did not indicate the applicant’s ‘receiving’ prior
to her search. Said notice served on the applicant is extracted as under:
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12. Delay in Trial: It was submitted that the applicant was arrested on 12th
December 2021 and till date, only 2 witnesses out of 16 witnesses has been
examined, in light of which, it is likely that the trial will take an
excruciatingly long time during which, the applicant claiming innocence
cannot be made to undergo prolonged incarceration.
13. In support of their arguments, counsel for applicant relied on the
following judicial precedents:
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a. Kashif v. Narcotics Control Bureau 2023 SCC OnLine Del 288;
b. Vinod Nagar v. Narcotics Control Bureau 2024:DHC:1244;
c. Mangilal v. State of Madhya Pradesh 2023 SCC OnLine SC 862;
d. Pankaj @Jatin v. State NCT of Delhi BAIL APPLN. 683/2024, order
dated 10th April 2024;
e. Madhuri Chauhan v. State of NCT of Delhi 2024:DHC:5008; and
f. Chibuzo @Chibuzor Cristatus v. State (Govt. of NCT of Delhi) BAIL
APPLN.2252/2023, order dated 09th July 2024;
g. Gurpreet Singh v. State of NCT of Delhi 2024:DHC:796;
h. Abdul Kadar Shaikh v. Union of India (Through Narcotic Control
Bureau) 2024:BHC-AS:21218; and
i. Gopal Dangi v. State NCT of Delhi 2024:DHC:5175.
Submissions on behalf of Customs
14. Senior Standing Counsel appearing on behalf of Customs refuted the
above contentions and submitted that due procedure was followed by the
Customs Authorities and full compliance of Section 52A, NDPS Act as well
as Section 102, Customs Act was made. Also, compliance of Standing Order
[“SO”] Nos 1/88 [issued by the Narcotics Control Bureau] and 1/89
[applicable from 13th June 1989 issued by Government of India, Ministry of
Finance] was duly made as well. In any case, these contentions may be raised
at the stage of trial and have no bearing on grant/refusal of bail.
15. It was further submitted that since the contraband seized was of
commercial quantity, rigours of Section 37, NDPS Act will be triggered. At
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this stage, the twin conditions imposed by Section 37, NDPS Act cannot be
said to have been satisfied as there is abundant evidence to have hold a prima
facie view which does not exonerate the applicant from guilt of committing
the alleged offences.
16. In support of his arguments, SPP for Customs placed reliance upon the
following decisions:
a. Quentin Decon v. Custom 2023:DHC:3897;
b. Umar Sebandeke v. Customs 2024:DHC:5184;
c. Somdutt Singh @ Shivam v. NCB 2023:DHC:8550;
d. Surender Kumar v. Central Bureau of Narcotics (CBN)
2023:DHC:6309;
e. Mohit Yadav v. State of NCT, Delhi 2024:DHC:3144;
f. State of Kerala v. Rajesh (2020) 12 SCC 122;
g. State of Gujrat v. Salimbhai Abdulgaffar Shaikh & Ors (2003) 8 SCC
50;
h. State v. Syed Amir Hasnain (2002) 10 SCC 88;
i. Supdt. Narcotics Control Bureau, Chennai v. R. Paulsamy 2001 SCC
(Crl.) 648 (SC);
j. Sanjeev Kumar v. NCB Crl Misc (M) No.3962/2002 decided on 17th
February 2003;
k. State of M.P. v. Kajad (2001) 7 SCC 673;
l. Union of India v. Rattan Mallik, (2009) 2 SCC 624; and
m. Khet Singh v. Union of India (2002) 4 SCC 380.
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Analysis
17. Heard counsel on behalf of parties and perused the material placed on
record. At the outset, reference may be made to the substance that was seized
from the instance of the applicant i.e. Methaqualone which is a psychotropic
substance, as envisaged in the NDPS Act. Psychotropic substances are
defined in Section 2(xxiii) of the NDPS Act and included in the Schedule to
the NDPS Act:
“(xxiii) “Psychotropic substance” means any
substance, natural or synthetic, or any natural
material or any salt or preparation of such
substance or material included in the list of
psychotropic substances specified in the
Schedule;”
18. The United Nations Office on Drugs and Crime Manual on
“Recommended Methods for the Identification and Analysis of
Methaqualone/Mecloqualone” 1 explains the substance Methaqualone as a
quinazolone derivative first synthesized in 1951, and used medically as a
hypnotic for the short-term treatment of insomnia. It is also rampantly used as
a recreational drug as it acts as a central nervous system depressant in a
manner not unlike barbiturates. It was commonly marketed as Quaaludes and
Mandrax (containing Methaqualone base 250 mg, and diphenhydramine
hydrochloride 25 mg) in the 1960s and 1970s; also, as Malsed, Malsedin, and
1
United Nations Office on Drugs and Crime (2010) Recommended methods for the identification and
analysis of methaqualone/mecloqualone. United Nations Office on Drugs and Crime.
https://syntheticdrugs.unodc.org/uploads/syntheticdrugs/res/library/forensics_html/Recommended_Methods_
for_the_identification_and_analysis_of_Methaqualone_Mecloqualone_ST-NAR-15_and_Rev.1.pdf
(accessed October 16 2024).
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Renoval in the United Kingdom. Due to abuse, addiction and a higher
potential to create dependence than the barbiturates, Methaqualone is no
longer prescribed in medicine and is widely under international control
(Substances in Schedule II of the Convention on Psychotropic Substances
1971 2 ). The detrimental effects of hypnotic dependence on Methaqualone
arise particularly from the persistence of effects such as ataxia, dysarthia,
mental impairment, confusion and poor judgement. Side effects of treatment
with Methaqualone or its hydrochloride in therapeutic doses include
headaches, hangovers, dizziness, drowsiness, anorexia, nausea and gastro-
intestinal discomfort, dry mouth, restlessness and sweating. Skin reactions
have also been reported. Methaqualone is now only largely illicitly produced
in clandestine laboratories. Its main use is as a recreational drug taken orally
as a tablet formulation and often smoked when mixed with cannabis
(marijuana).
19. In the present case, the seizure was done on 12 December 2021 when
the applicant was apprehended at Terminal 3, Indira Gandhi International
Airport, New Delhi. On interrogation, she denied carrying any contraband,
however, a search of her baggage revealed about 1.873 kg Methaqualone
valued at approximately Rupees 93.67 lacs. It is pertinent to note that the
threshold for commercial quantity of Methaqualone is 500 grams.
Alleged Planting of Drugs
2
UN General Assembly, 1971 Convention on Psychotropic Substances, A/RES/3443, UN General
Assembly, 9 December 1975, https://www.refworld.org/legal/resolution/unga/1975/en/9579 [accessed 16
October 2024].
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20. Counsel for applicant has put forth a defence of planting of drugs while
referring to the testimony of PW-2 and contended that the seized contraband
was of a different colour than which was referred to by the said witness.
However, this is an issue which will be decided post-trial, after all evidence
has been led, and whether there is a colour change, is it a natural occurrence,
specific to he chemical involved or whether the colour change denotes a
defect/tampering in seizure or storage of the contraband. At this stage of bail,
this issue cannot give any benefit of reasonable doubt to the applicant-
accused.
Delay in Filing Section 52A Application
21. The recovery of contraband at the instance of applicant was on 12 th
December 2021 and seizure was done on the same day in this case. However,
applicant states that the application under Section 52A, NDPS Act was moved
on 24th December 2021 i.e. after a delay of 12 days, way after 72 hours.
22. In respect of this objection, it is noted that SO 1/89 does not prescribe
specific time-period for moving said application. SO 1/88 requires samples to
be dispatched to the FSL not later than 72 hours.
23. The Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC
1 traversed the international background and need and necessity to enact the
NDPS quite succinctly. For the sake of brevity, a short portion is being
extracting to capture the essence of the discussion therein as follows:
“24. The NDPS Act has been enacted, inter alia,
to implement International Conventions relating
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to narcotic drugs and psychotropic substances to
which India has been a party and also to
implement the Constitutional policy enshrined in
Article 47 of the Constitution of India, which casts
a duty upon the State to improve public health and
also to prohibit consumption, except for medicinal
purposes, of drugs which are injurious to health.”
(emphasis added)
24. The NDPS Act attempts to strike a balance between personal liberty,
conduct of fair trial, and discharging the duty to curb the menace of drugs
running rampant in this country. Deliberating upon the inclusion of Section
37 in the NDPS Act, the Apex Court in Union of India v. Ram Samujh
(1999) 9 SCC 429 elaborated upon the legislative intent of the NDPS Act in
the following manner:
“6. The aforesaid section is incorporated to
achieve the object as mentioned in the Statement
of Objects and Reasons for introducing Bill No.
125 of 1988 thus:
“Even though the major offences are non-
bailable by virtue of the level of
punishments, on technical grounds, drug
offenders were being released on bail. In
the light of certain difficulties faced in the
enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the
need to amend the law to further
strengthen it, has been felt.”
(emphasis supplied)
7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to
and followed. It should be borne in mind that in a
murder case, the accused commits murder of one
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or two persons, while those persons who are
dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a
number of innocent young victims, who are
vulnerable; it causes deleterious effects and a
deadly impact on the society; they are a hazard to
the society; even if they are released temporarily,
in all probability, they would continue their
nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. Reason may be large
stake and illegal profit involved.
…
8. To check the menace of dangerous drugs
flooding the market, Parliament has provided that
the person accused of offences under the NDPS
Act should not be released on bail during trial
unless the mandatory conditions provided in
Section 37, namely,
(i) there are reasonable grounds for
believing that the accused is not guilty of
such offence; and
(ii) that he is not likely to commit any
offence while on bail
are satisfied. The High Court has not given any
justifiable reason for not abiding by the aforesaid
mandate while ordering the release of the
respondent-accused on bail. Instead of attempting
to take a holistic view of the harmful socio-
economic consequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should implement the
law in the spirit with which Parliament, after due
deliberation, has amended.”
(emphasis added)
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25. The Supreme Court in Ram Samujh (supra), while referring to
punishment under the NDPS Act and adverse effects of these activities, also
referred to the decision of the Apex Court in Durand Didier v. Chief Secy.,
Union Territory of Goa (1990) 1 SCC 95; relevant portions of Duran Didier
(supra) are reproduced as under:
“24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and
illegal trafficking in such drugs and substances
have led to drug addiction among a sizeable
section of the public, particularly the adolescents
and students of both sexes and the menace has
assumed serious and alarming proportions in the
recent years. Therefore, in order to effectively
control and eradicate this proliferating and
booming devastating menace, causing deleterious
effects and deadly impact on the society as a
whole, the Parliament in its wisdom, has made
effective provisions by introducing this Act 81 of
1985 specifying mandatory minimum
imprisonment and fine. As we have now rejected
the plea of the defence holding that the penal
provisions of Section 27(a) has no role to play as
the prohibited drugs and substances possessed by
the appellant were far in excess of the quantity
mentioned in column 3 of the table under the
notification, the sentence of 10 years rigorous
imprisonment and the fine of Rs 1,00,000 with the
default clause as modified by the High Court does
not call for interference.”
(emphasis added)
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26. To grant bail under the regime of NDPS Act in situations of seizure of
commercial quantity of contraband, rigours of Section 37, NDPS Act apply;
bare text of the provision reads as under:
“37. Offences to be cognizable and non-
bailable.–
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall
be cognizable; (b) no person accused of an
offence punishable for offences under Section 19
or Section 24 or Section 27-A and also for
offences involving commercial quantity shall be
released on bail or on his own bond unless–
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor oppose the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal
Procedure, 1973 (2 of 1974), or any other law for
the time being in force, on granting of bail.”
(emphasis added)
27. Counsel for applicant relies upon Kashif (supra), a decision of a
coordinate Bench of this Court, in order to contend that delay in filing Section
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52A application ought to render the Court to afford benefit of doubt to the
applicant. Relevant portions of Kashif (supra) are as under:
“24. 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.
25. In the present case, the sample was kept in the
custody of the prosecuting agency for more than
one and a half month, thus, raising doubt with
regards to tampering of the same.
26. Another reason which persuades me to take
this view is that once the Apex Court has held in
Mohanlal (supra) that the application under 52A
has to be made without any undue delay, there
should not be any reason for delaying the filing of
application.
27. The application for sample collection under
section 52A is not a technical application wherein
elaborate reasons, principles of law or detailed
facts are required. It is more of a clerical
application and should mandatorily be made
within a reasonable time under section 52A
NDPS. The application has to be moved at the
earliest and in case, the same has not been moved,
the reasons for delay must be explained by the
authorities.
Reasonable time under section 52A
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28. What is reasonable time depends on the facts
and circumstances of each case. 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.”
(emphasis added)
28. Thereafter, another coordinate Bench of this Court in Somdutt Singh @
Shivam (supra) distinguished the judgment in the case of Kashif (supra) on
the aspect that no recovery was effected from the possession or at the instance
of the applicants therein and thus, embargo of Section 37 was not attracted.
While dismissing the bail application, Court in Somdutt Singh @ Shivam
(supra) observed as follows:
“16. Furthermore, recently a Co-ordinate Bench
of this Court in Surender Kumar (supra) has
observed that Section 52-A of the NDPS Act is
directory in nature and non-compliance of the
same, in itself, cannot render the investigation
invalid. Accordingly, the bail application of an
accused charged of illegally selling narcotic
medicines was dismissed by taking into account
that the case involved commercial quantity of
such medicines.
17. It is clear from a reading of the aforesaid
judgments that there is no mandatory time
duration prescribed for compliance of Section 52-
A of the NDPS Act. Though it is desirable that the
procedure contemplated in Section 52-A of the
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NDPS Act be complied with at the earliest, mere
delayed compliance of the same cannot be a
ground for grant of bail. The applicant will have
to show the prejudice caused on account of
delayed compliance of Section 52-A of the NDPS
Act.”
(emphasis added)
29. The decision in Somdutt Singh (supra) was challenged before the Apex
Court in Special Leave Petition (Crl.) No. 415/2024. By order dated 16 th May
2024, Court dismissed the said special leave petition.
30. In the present case, the application under Section 52A, NDPS Act was
preferred 12 days after the seizure of the contraband from the applicant. The
applicant may, in accordance with applicable law, contend prejudice caused
on account of this delay, during trial. The judgement of a coordinate Bench in
Sovraj v. State 2023:DHC:8550, on similar lines, had observed as under:
“57. It is pertinent to note that the Hon’ble Apex
Court in the case of Union of India v. Mohanlal
(supra) had specifically noted that while the
process of sampling cannot be left to the whims of
the prosecution and the application for sampling
and certification ought to be made without undue
delay, there was no room for prescribing or
reading a time-frame into the provision. Though
no timeframe has been incorporated in the
provision, the application should be made without
undue delay. The cause of delay, however, in the
opinion of this Court, can be explained by the
prosecution during the course of trial and is not
fatal.
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58. As long as the prosecution is able to justify the
delay on its end, mere delay would not vitiate the
evidence. To hold otherwise would lead to an odd
situation where even a few hours post the
threshold of 72 hours would nullify the evidence.
The Court has to be cognizant of the ground
realities where situations may arise where the
sample was not sent to FSL on time or the
application under Section 52A of the NDPS Act
could not be preferred on time.”
(emphasis added)
31. Although in Sovraj (supra), this Court had enlarged the accused on
bail, same was done inter alia on the issue of absence of independent
witnesses and lack of photography or videography of the recovery. Same do
not form basis of applicant’s contentions herein and thus, application of law
in this case will have to be done in the facts and circumstances of this case. In
the present matter, at this stage, this Court is of the opinion that the applicant
has failed to overcome the threshold as prescribed by Section 37, NDPS Act.
Defective Notice
32. As far as the issue of proforma notice is concerned, it may be noted that
provision of Section 50, NDPS Act needs to be complied with only in cases of
personal search and not of the person searched. In this regard reference is
made to the decision of the Supreme Court in Ranjan Kumar Chadha v.
State of Himachal Pradesh 2023 SCC OnLine SC 1262. Objections as
regards defective notice under Section 50, NDPS Act or Section 102,
Customs Act may not be finally relevant since nothing was revealed in a
personal search of the accused. Provisions of Section 50, NDPS Act need to
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be complied with only in cases of personal search and not where it is of the
bag of the person being searched. Relevant portions of Ranjan Kumar
Chadha (supra) are extracted as under:
“93. Thus, in Pawan Kumar (supra) the larger
Bench while answering the reference in no
uncertain terms stated that “a bag, briefcase or
any such article or container, etc. can, under no
circumstances, be treated as body of a human
being. They are given a separate name and are
identifiable as such. They cannot even remotely be
treated to be part of the body of a human being.”
94. The Court reasoned that a person of varying
capacity can carry different items on his or her
body but that does not make those items as a part
of body. The Court observed, “Depending upon
the physical capacity of a person, he may carry
any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a
holdall, a carton, etc. of varying size, dimension
or weight. However, while carrying or moving
along with them, some extra effort or energy
would be required. They would have to be carried
either by the hand or hung on the shoulder or
back or placed on the head. In common parlance
it would be said that a person is carrying a
particular article, specifying the manner in which
it was carried like hand, shoulder, back or head,
etc.
95. Therefore, Pawan Kumar (supra) concluded
that an external article which does not form part
of body is outside the ambit of the word “person”
occurring in Section 50 of the NDPS Act.
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96. What is most important to note in Pawan
Kumar (supra) is that the search was not only of
the bag, but also of the person of the accused,
however, the contraband was recovered only from
the bag and not from the person of the accused
therein. What we are trying to highlight is that
although in Pawan Kumar (supra) the search was
of the accused as well as the bag, yet since the
recovery of the contraband was only from the bag,
this Court took the view that Section 50 would
have no application.
…
103. Accordingly, Section 50 was read to be
understood as applicable only to the personal
search of a person and that would not extend to
search of a vehicle or a container or a bag.”
(emphasis added)
33. As noted by the Supreme Court in State of Himachal Pradesh v
Pawan Kumar 2005 4 SCC 350, the search was both of applicant as well as
of the luggage she was carrying, but since nothing was recovered from her
personal search, Section 50 would not apply.
34. However, a note of caution is to be made regarding these proforma
notices as reproduced in paragraphs 10 and 11 above. Though the signatures
of the accused are there of having “received” the notice, with the signatures of
the witnesses as well, there is a pre-typed no objection for search to be
conducted by a lady customs officer under which the sign is procured of the
accused. This practice may not be totally correct considering that Section 50
requires options to be given to the person being searched; in fact an
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affirmative option is to be exercised for the search being conducted before the
nearest Gazetted Officer/Magistrate. Having provided a pre-typed proforma,
with the less desirable option and getting it endorsed by the signatures of the
person being searched, that too in the heat of the moment of the raid/seizure,
is a practice which is to be deprecated. A proforma typed notice may ideally
have both the options i.e. first that the person requires the personal search to
be done before a Gazetted Officer/Magistrate; and second that the person to
be searched has no objection to being searched by an officer present (lady
officer in case the person to be searched is female).
35. Customs is well-advised to alter their proforma notices to introduce the
above options in consonance with requirements of Section 50 as sanctified by
decisions of Supreme Court inter alia in Ranjan Kumar Chadha (supra). In
this regard, following paragraphs of the said judgment have been reproduced
below for reference:
“64. There is no requirement to conduct the
search of the person, suspected to be in
possession of a narcotic drug or a psychotropic
substance, only in the presence of a Gazetted
Officer or Magistrate, if the person proposed to
be searched, after being apprised by the
empowered officer of his right under Section 50 of
the NDPS Act to be searched before a Gazetted
Officer or Magistate categorically waives such
right by electing to be searched by the empowered
officer. The words “if such person so requires”,
as used in Section 50(1) of the NDPS Act would
be rendered otiose, if the person proposed to be
searched would still be required to be searched
only before a Gazetted Officer or Magistrate,
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despite having expressly waived “such
requisition”, as mentioned in the opening
sentence of sub-Section (2) of Section 50 of
the NDPS Act. In other words, the person to be
searched is mandatorily required to be taken by
the empowered officer, for the conduct of the
proposed search before a Gazetted Officer or
Magistrate, only “if he so requires”, upon being
informed of the existence of his right to be
searched before a Gazetted Officer or Magistrate
and not if he waives his right to be so searched
voluntarily, and chooses not to exercise the right
provided to him under Section 50 of the NDPS
Act.
65. However, we propose to put an end to all
speculations and debate on this issue of the
suspect being apprised by the empowered officer
of his right under Section 50 of the NDPS Act to
be searched before a Gazetted Officer or
Magistrate. We are of the view that even in cases
wherein the suspect waives such right by electing
to be searched by the empowered officer, such
waiver on the part of the suspect should be
reduced into writing by the empowered officer. To
put it in other words, even if the suspect says that
he would not like to be searched before a
Gazetted Officer or Magistrate and he would be
fine if his search is undertaken by the empowered
officer, the matter should not rest with just an oral
statement of the suspect. The suspect should be
asked to give it in writing duly signed by him in
presence of the empowered officer as well as the
other officials of the squad that “I was apprised
of my right to be searched before a Gazetted
Officer or Magistrate in accordance with
Section 50 of the NDPS Act, however, I declare on
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my own free will and volition that I would not like
to exercise my right of being searched before a
Gazetted Officer or Magistrate and I may be
searched by the empowered officer.” This would
lend more credence to the compliance of
Section 50 of the NDPS Act. In other words, it
would impart authenticity, transparency and
credit worthiness to the entire proceedings. We
clarify that this compliance shall henceforth apply
prospectively.
66. ..(iv) While informing the right, only two
options of either being searched in presence of a
Gazetted Officer or Magistrate must be given,
who also must be independent and in no way
connected to the raiding party.”
(emphasis added)
Delay in Trial/Prolonged Incarceration
36. The plea of delay in trial and prolonged incarceration, though being
recognized by the Supreme Court as an inalienable right under Article 21 of
the Constitution of India cannot have a formulaic application. There have
been various decisions of the Supreme Court on the aspect of delay in trial,
the relevant paragraphs of the same have been extracted as under:
i. Rabi Prakash v State of Odisha 2023 SCC OnLine SC 1109 where
a recovery of 247 kgs of ganja was made and the petitioner had
been in custody for more than three and a half years, with no
criminal antecedents, the Court held as under:
“4. As regard to the twin conditions contained in
Section 37 of the NDPS Act, learned counsel forSignature Not Verified
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the respondent – State has been duly heard. Thus,
the 1st condition stands complied with. So far as
the 2nd condition re: formation of opinion as to
whether there are reasonable grounds to believe
that the petitioner is not guilty, the same may not
be formed at this stage when he has already spent
more than three and a half years in custody. The
prolonged incarceration, generally militates
against the most precious fundamental right
guaranteed under Article 21 of the Constitution
and in such a situation, the conditional liberty
must override the statutory embargo created
under Section 37(1)(b)(ii) of the NDPS Act.”
ii. Dheeraj Kumar Shukla v State of U.P. 2023 SCC OnLine SC
918 where there was a seizure of about 65 kgs of ganja and the
petitioner was in custody for about two and a half years, the
Supreme Court while granting bail, stated as under:
“3. It appears that some of the occupants of the
‘Honda City’ Car including Praveen Maurya @
Puneet Maurya have since been released on
regular bail. It is true that the quantity recovered
from the petitioner is commercial in nature and
the provisions of Section 37 of the Act may
ordinarily be attracted. However, in the absence
of criminal antecedents and the fact that the
petitioner is in custody for the last two and a half
years, we are satisfied that the conditions of
Section 37 of the Act can be dispensed with at this
stage, more so when the trial is yet to commence
though the charges have been framed.”
iii. In Man Mandal & Anr. v State of West Bengal 2023 SCC
OnLine SC 1868 where the seizure was commercial in nature
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and the petitioner had been incarcerated for about two years and
there was no hope of the trial concluding soon, the Supreme
Court while granting bail stated as under:
“6. Taking into consideration the fact that the
petitioners have been incarcerated for a period of
almost two years and the trial is not likely to be
taken up for hearing in the immediate near future,
we are inclined to grant bail to the petitioners.”
iv. In Badsha Sk. v State of West Bengal 2023 SCC OnLine SC
1867 where the seizure was of 100 bottles of Phensedyl Cough
Syrup (100 ml. each), containing Codeine Phosphate, the
petitioner had been in custody for about 2 years 4 months and
the trial was yet to commence, the Supreme Court while
granting bail noted as under:
“5. The above would show that the trial is yet to
commence in the matter(s) and in the meantime,
petitioners have been in custody for long. The
State counsel submits that there are no known
criminal antecedents against the two accused.”
37. Assessment of these decisions of the Supreme Court cited above shows
that bail has been granted in cases having differing facts, some with
incarceration of more than 3 years, and some in cases of seizure of ganja. The
assessment, therefore, on prolonged custody and delay in trial will depend of
facts and circumstances of the case. Whether 2 or 3 years or more, or any
other time period is “prolonged”, is clearly left to the assessment of the Court.
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38. In this case, the petitioner has undergone almost 3 years of custody and
the trial is progressing. An attempt may be made by the Trial Court to
expedite the trial. In the event, that the trial does not proceed ahead
expeditiously, needless to state that the applicant will have the right to
approach the Court at a subsequent stage.
39. In this regard, it is to be noted that in the decision of the Supreme Court
in Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India (1994) 6 SCC 731 in context of incarceration as
an undertrial and delay in disposal of cases it was stated inter alia that when
an undertrial is charged with offences with minimum imprisonment of 10
years, and if he has been in jail for not less than 5 years, he may be released
on bail upon furnishing bail bond in the sum of Rupees one lakh with two
sureties for like amount. This view has been endorsed in Thana Singh v.
Central Bureau of Narcotics (2013) 2 SCC 603 as under:
“4. Time and again, this Court has emphasised
the need for speedy trial, particularly when the
release of an undertrial on bail is restricted under
the provisions of the statute, like in the present
case under Section 37 of the NDPS Act. While
considering the question of grant of bail to an
accused facing trial under the NDPS Act
in Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of
India [(1994) 6 SCC 731 : 1995 SCC (Cri) 39]
this Court had observed that though some amount
of deprivation of personal liberty cannot be
avoided in such cases, but if the period of
deprivation pending trial becomes unduly long,
the fairness assured by Article 21 of the
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Constitution would receive a jolt. It was further
observed that after the accused person has
suffered imprisonment, which is half of the
maximum punishment provided for the offence,
any further deprivation of personal liberty would
be violative of the fundamental right visualised by
Article 21. We regret to note that despite it all,
there has not been visible improvement on this
front.”
(emphasis added)
40. In light of the above discussion, taking into consideration four times the
commercial quantity of contraband seized from the instance of the applicant,
there being no prejudicial infirmity in the process adopted by the respondent,
rigours of Section 37, NDPS Act, and progressing trial, this Court is unable to
reach a prima facie conclusion that applicant is not guilty of the offences and
is unlikely to commit the same if enlarged on bail. The threshold of Section
37, NDPS Act not having been crossed, the application for bail
cannot be granted.
41. Bail application stands dismissed.
42. Needless to state that any observations made herein are only for the
purpose of deciding the present bail application and should not be read as a
comment upon the merits of the case.
43. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
OCTOBER 18, 2024/MK/sc
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