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Court while suspending the sentence of a convict under the NDPS Act, 1985 observed that the Standing Orders and Provisions related to Sampling and Seizure must be adhered to by the Investigative Agencies.
The Delhi High Court in its judgment dated May 30, 2023 suspended sentence of a convict undergone 5 years of imprisonment under the NDPS Act, 1985, stating that the Standing Orders issued by Narcotics Control Bureau cannot be rendered optional for compliance by the investigating authorities. Noticeably, samples in the present case were drawn at the time of seizure whereas as per the recent Standing Order dated 23rd December, 2022, sampling is to be conducted in the presence of Magistrate. Moreover, separate sampling should have been conducted with respect to mix of packets obtained in the present case which was not done by the authorities.
The court was hearing plea by a convict under Ss. 22(c) and 23(c) of the NDPS Act, 1985, charged with 10 years of rigorous imprisonment and a fine of Rs. 1 lakh.
Justice Anish Dayal, while allowing suspension of sentence, observed, “Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders are based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper… The lack of compliance of these provisions necessarily imports an element of doubt, moreover a reasonable doubt. This therefore will segway into the issue of proving guilt, considering that the guilt of any accused has to be proved beyond reasonable doubt.”
Union of India v. Bal Mukund, (2009) 12 SCC 161 and Basant Rai v. State, 2012 SCC OnLine Del 3319 on the requirement of law to conduct separate sampling in case of mixed samples, Amani Fidel Chris and Laxman Thakur v. NCTD, 2022 SCCOnLine Del 4427 on procedural compliance as per Ss. 37, 52A of the NDPS Act and the Standing Orders issued by the NCB, Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 on directory nature of Ss. 52, 57 of the NDPS Act, were inter-alia referred to by the Hon’ble Court.
The precise form of drawing samples as per the Supreme Court decision in Union of India v. Mohanlal, (2016) 3 SCC 379 was further referred and reproduced;
“No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52- A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading seizure and sampling. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order…”
Brief Background
Pursuant to a secret information received on April 2, 2018, at about 7:30 pm, NCB team apprehended a Zimbabwean citizen at about 8:30 pm at IGI Airport, New Delhi.
Two polythene were recovered containing crystalline substances.
After testing, the contraband was mixed and transferred into a transparent polythene and the total weight was 3kg. Two samples of 5gm each were taken from the mixed substance, thereafter, the appellant’s statement under section 67 NDPS Act was recorded.
CRCL report dated Ap. 18, 2018 confirmed crystalline substance to be Methamphetamine.
The appellants contended that the sample collection by the NCB was not as per standing orders issued time and again by the Government, on the following grounds;
Case Title: Betty Rame v. Narcotics Control Bureau | Crl. M. (Bail) 1324 of 2022
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