Binder 1

IN THE COURT OF SH.
SUDHIR KUMAR SIROHI,

SPECIAL JUDGE, NDPS, NEW DELHI,
PATIALA HOUSE COURTS
SC No. /2024
IN THE MATTER OF:

KRUNAL GOLWALA …..APPLICANT
Versus
NARCOTICS CONTROL …..RESPONDENT
BUREAU (NCB)
JUDGMENT COMPILATION
S.no. Judgment Relevant Page
Para no.
Non compliance of Section 52-A vitiates the proceedings
1. Union of India v Mohanlal & 14 - 17, 19

Anr. 1 -38
(2016) 3 SCC 379
2. Simarnjit Singh versus State of
Punjab 5, 6, 8, 9 39 -
2023 livelaw (SC) 570 40
3. Yusuf @ Asif versus State 8, 10, 13 , 41 -
2023 LiveLaw (SC) 890 15 , 16 44
4. Sarvothaman Guhan @Sarvo
versus NCB 16, 17, 45 -
Bail Appln. 2879/2022 20, 21, 25 69
Prolonged incarceration and delay in trial will override

Section 37 embargo
5. Rabi Prakash v. The State of

Odisha 4 70 -
2023 LiveLaw (SC) 533 71
6. Mahesh versus State (Govt of
3, 20 72 -
NCT of Delhi)
Bail Appln. 51/2022 89
Discrepancies in weights vitiate seizure
7. Sarvothaman Guhan @Sarvo
versus NCB 16, 17, 20,
Bail Appln. 2879/2022 21, 25
8. Kadir v. State (NCT) Of Delhi 8, 9, 10, 90
BAIL APPLN. 553/2023 11 -98
THROUGH
TUSHAR SHARMA,
MOHAMMAD FAIZAN &
AKSHAY JAIN
Advocates
D-50, Vivek Vihar, Phase-1,
New Delhi: - 110095
M: 9354124731
E-mail: tusharsharma133@gmail.com
Place: - New Delhi
Date: - .01.2024
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Tuesday, January 23, 2024
Printed For: Mr. Mohit Mathur
SCC Online Web Edition: http://www.scconline.com
1
True Prinf TruePrint™ source: Supreme Court Cases, © 2024 Eastern Book Company. The text of this version of
this judgment is protected by the law declared by the Supreme Court in Eastern Book Company v. D.B.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. MOHANLAL 379

(2016) 3 Supreme Court Cases 379
(BEFORE DR T.S. THAKUR, C.J. AND KURIAN JOSEPH, J.)
a UNION OF INDIA Appellant;
Versus
MOHANLAL AND ANOTHER Respondents.
Criminal Appeal No. 652 of2012t, decided on January 28, 2016
b A. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 52-A

and 55 - Handling and disposal of seized narcotic drugs and psychotropic
substances under, there being danger of re-circulation of seized contraband
back into the system - Storage facilities - Lack of special, independent
and proper storage facilities - Importance of protecting seized drugs against
theft, substitution and pilferage - Directions and clarifications issued
C - Clarified, that although NDPS Act did not provide for any special
provision for storage of contraband, Standing Order No. 1 of 1989 (S. III)
made it mandatory that it should be stored in "safes and vaults" provided
with double-locking system - And that designated godowns for storage of
contraband should be placed under gazetted officers of enforcement agency -
General tendency was to keep contraband in Malkhanas of police stations along
d with other seized items - It was however, submitted that there was periodic
checking of stock registers at storage sites
- Judicial notice taken of fact that most States did not have proper storage
facilities - And that though there was an effective mechanism for upkeep and
effective management of contraband and also an accountability mechanism,
e Governments miserably failed to effectively implement it - In fact there was
complete failure by both Central Government and State Governments in this
regard - Only hope expressed that serious drug menace in the country is not
on account of any unholy alliance between drug traffickers and enforcement
agencies
- Directions - Central Government and State Governments therefore,
f directed to set up storage facilities within six months - State Governments
directed to designate officer for each of their storage facility and provide other
steps, measures as per Standing Order No. 1 of 1989 to ensure proper security
against theft, pilferage and replacement of seized drugs - Said Governments
also given liberty to set up a storage facility in each district depending upon
extent of seizure and store required- [Ed.: See paras 8, 20 to 25, 31.2 and 31.3]
g
B. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 52-A
and 55 - Handling and disposal of seized narcotic drugs and psychotropic
substances, under (there being danger of re-circulation of seized contraband
into system) - Seizure and sampling - Importance of samples that it is
primary evidence in NDPS trials - But there being lacunae and deficiencies,
h
t From the Judgment and Order dated 5-1-2010 of the High Court of M.P. in Crl. A. No. 193 of2008
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2
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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380 SUPREME COURT CASES (2016) 3 sec

lack of uniform practice and conflict of laws in this regard - Directions and
clarifications
a
- Conflict between statutory provision and standing orders - As per
Para 2.2 of Standing Order No. 1 of 1989 samples must be taken from seized
contraband on the spot at the time of recovery itself - But most of States
claimed that no samples are drawn at time of seizure - Further there was no
uniform practice - Central Government directed to re-examine matter and
take suitable steps
b
- Although there is no statutory time-frame for sampling and
certification of seized contraband, manner in which it should be done stated
- [Ed.: See paras 12, 13 and 16 to 19]
C. Narcotics, Intoxicants and Liquor- Menace of drug trafficking, stated

and discussed c
D. Criminal Law - Narcotics, Intoxicants and Liquor - Narcotic Drugs
and Psychotropic Substances Act, 1985 - Ss. 52-A and 55 - Handling and
disposal of seized narcotic drugs and psychotropic substances, under (there
being danger of re-circulation of seized contraband into system) - Safe and
timely disposal of drugs under proper judicial and administrative supervision d
- Directions and clarifications issued
- Clarified that as per Para 4 of Noti. dt. 16-1-2015, officer-in-charge of
police station should within 30 days of receipt of chemical analysis apply to
Magistrate under S. 52-A(2) to initiate action for disposal - For this detailed
procedure prescribed in paras 4 to 11 of N oti. dt. 16-1-2015 should be followed
[Ed.: See para 28 for said procedure] - Further clarified that in case of doubt/ e
conflict, latter Noti. dt. 16-1-2015 would prevail - [Ed.: Instances in which
conflict may arise are given in para 29]
- Procedure to be followed in all cases in which trial, appeal, revision
have finally concluded and/or disposed of - Disposal of contraband in such
cases after verification and testing, that is, requirement of Para 5.5 of Standing f
Order 1 of 1989 would be an empty formality - Therefore, in such cases Drug
Disposal Committee directed to take steps for their disposal without any further
verification, testing or sampling whatsoever - Clarified that such destruction
should be done under direct supervision of head of department concerned -
Such disposal will reduce hazards that go with their continued storage and
availability in market for re-circulation - [Ed.: Though Paras 30.1 and 30.2 9
relate to different proceedings, the disposal procedure prescribed by Supreme
Court is exactly the same]
- Procedure to be followed in cases still pending before Courts -
Departments concerned should ensure that appropriate applications are moved
by officers competent to do so under Noti. dt. 16-1-2015 - And steps for
disposal of such narcotics and drugs is taken without any further loss of time h
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3
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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E. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 52-A
and 55 - Handling and disposal of hazardous physical substances i.e. seized
a narcotic drugs and psychotropic substances, under (there being danger of
re-circulation of seized contraband into system) - Direction to High Court
keeping in view importance of subject-matter - High Court directed to
appoint Committee of Judges on administrative side to supervise and monitor
progress made by respective States in regard to compliance with directions in
present case - High Court, wherever necessary should also give appropriate
b directions in this regard - [Ed.: See para 32]
Held:
In Mohanlal, (2012) 7 SCC 719, the Court appointed an Amicus Curiae to
make realistic review of the procedure for search, disposal or destruction of the
narcotics and the remedial steps that need to be taken to plug the loopholes, if
any. (Para 1)
C
Union of India v. Mohanlal, (2012) 7 SCC 719: (2012) 3 SCC (Cri) 479, referred to
On 3-7-2012, in Mohanlal, (2012) 7 SCC 712, the Court after hearing the
Amicus Curiae prima facie came to the conclusion that the procedure prescribed for
the destruction of the contraband seized in different States was not being followed
resulting in a very piquant situation in which accumulation of huge quantities of the
d seized drugs and narcotics increased the chances of their pilferage for re-circulation
in the market. It was argued by the Amicus Curiae that without proper data from
the authorities concerned, it was not possible to take stock of the magnitude of the
problem no matter challenges posed by rampant drug abuse had acquired alarming
proportions affecting the youth, some of w horn are driven to commission of crimes
on account of deleterious effects of drug abuse. It was in the above backdrop that by
e an order dated 3-7-2012 passed inMohanlal, (2012) 7 SCC 712, the Court directed
collection of information from the police heads of each one of the States through the
Chief Secretaries concerned in regard to seizure, storage, disposal and destruction
of the seized contraband and judicial supervision over the same. (Paras 2 and 3)
Union of India v. Mohanlal, (2012) 7 SCC 712: (2012) 3 SCC (Cri) 716, referred to
Report published in the tirnesofindia.indiatirnes.com under the heading "Bathinda's Police
f Stores Bursting at Seams with Seized Narcotics", referred to
In compliance with the above directions, reports have been submitted by all
the States except the States of Arunachal Pradesh, Jammu and Kashmir, Dadar &
N agar Haveli, Lakshadweep, N agaland and Pondicherry. (Para 5)
The reports submitted by the State Governments and the Central Agencies
g claim that stock registers maintained at the storage sites are periodically checked
by the staff mentioned in the reports. Another question that was asked from
the State Governments and the Central Agency relates to the condition of the
storage facilities, shortage of storage facilities, if any, and whether any steps
have been taken or are being taken to remove the deficiencies. Answers to those
queries suggest that no proper storage facilities are available in most of the
h States. (Para 8)
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4
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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In answer to the question as to who is authorised to apply to the Court to
destroy the seized contraband and whether there has been any failure or dereliction
in making such applications and whether any person having technical knowledge a
of narcotic drugs and psychotropic substance (natural and synthetic) is associated
with the process of destruction of the contraband, the reply submitted by the State
Governments suggest that different persons in different States have been authorised
to make such applications to the Courts concerned except in Tripura where no
particular person is authorised. In some cases officer in charge of the police station
has been authorised while in others the investigating officer is also empowered to b
apply for permission to destroy the contraband. In answer to the question whether
any action has been taken against anyone who should have applied for permission to
destroy the narcotics but had not done so, the State Governments have all answered
in the negative implying thereby that either no dereliction of duty has occurred on
the part of any officer competent to apply for destruction or no action has been
taken for any such dereliction. (Para 10) C
Similarly, regarding the steps taken at the time of destruction to determine
the nature and quantity of the substance being destroyed, the reports submitted
by the State Governments give varying answers. There is no uniformity in the
procedure adopted by those associated or in charge of the process of destruction.
The reports suggest as if adequate steps are taken to prevent damage, loss, pilferage
and tampering/substitution of the narcotic drugs and psychotropic substances from d
the point of search to the point of destruction but there is no uniformity or standard
procedure prescribed or followed in that regard. The Court in these proceedings is
concerned with the following three issues only for the present:
(i) Seizure and sampling of the narcotic drugs and psychotropic
substances,
e
(ii) their storage, and
(iii) their destruction. (Para 11)
Section 52-A(l) of the NDPS Act, 1985 empowers the Central Government
to prescribe by a notification the procedure to be followed for seizure, storage
and disposal of drugs and psychotropic substances. The Central Government have
in exercise of that power issued Standing Order No. 1 of 1989 which prescribes f
the procedure to be followed while conducting seizure of the contraband. Two
subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015
deal with disposal and destruction of seized contraband and do not alter or add
to the earlier standing order that prescribes the procedure for conducting seizures.
Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from
the seized contrabands on the spot at the time of recovery itself. Para 2.2 of 9
Standing Order No. 1 of 1989 also speaks about keeping the seized contrabands
in lots, numbering them, and also drawing panchnama on the spot in presence of
panchas. (Para 12)
Most of the States, however, claim that no samples are drawn at the time of
seizure. Directorate of Revenue Intelligence is by far the only agency which claims
h
that samples are drawn at the time of seizure, while Narcotics Control Bureau
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5
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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asserts that it does not do so. There is thus no uniform practice or procedure being
followed by the States or the Central agencies in the matter of drawing of samples.
a This is, therefore, an area that needs to be suitably addressed in the light of the
statutory provisions which ought to be strictly observed given the seriousness of
the offences under the Act and the punishment prescribed by law in case the same
are proved. Thus the confusion should be removed. (Para 13)
Section 52-A as amended by Act 16 of 2014, deals with disposal of seized
drugs and psychotropic substances. The process of drawing of samples has to be in
b the presence and under the supervision of the Magistrate and the entire exercise has
to be certified by him to be correct. The question of drawing of samples at the time
of seizure which, more often than not, takes place in the absence of the Magistrate
does not in the above scheme of things arise. Samples drawn and certified by the
Magistrate in compliance with Section 52-A constitute primary evidence for the
purpose of the trial. But there is no provision in the Act that mandates taking of
C samples at the time of seizure. That is perhaps why none of the States claim to be
taking samples at the time of seizure. (Paras 14, 16 and 17)
A conflict between the statutory provision governing taking of samples and the
Standing Order issued by the Central Government is evident. Such a conflict shall
have to be resolved in favour of the statute on first principles of interpretation but
the continuance of the statutory notification in its present form is bound to create
d
confusion in the minds of the authorities concerned instead of helping them in the
discharge of their duties. The Central Government would, therefore, do well, to
re-examine the matter and take suitable steps in the above direction. (Para 18)
There is no manner of doubt that the seizure of the contraband must be followed
by an application for drawing of samples and certification as contemplated under
e the Act. There is equally no doubt that the process of making any such application
and resultant sampling and certification cannot be left to the whims of the officers
concerned. The scheme of the Act in general and Section 52-A in particular, does
not brook any delay in the matter of making of an application or the drawing
of samples and certification. While there is no room for prescribing or reading
a time- frame into the provision, an application for sampling and certification
f ought to be made without undue delay and the Magistrate on receipt of any such
application will be expected to attend to the application and do the needful, within
a reasonable period and without any undue delay or procrastination as is mandated
by Section 52-A(3). It is expected that the High Courts will keep a close watch on
the performance of the Magistrates in this regard and through the Magistrates on
the agencies that are dealing with the menace of drugs which has taken alarming
g dimensions in this country. (Para 19)
The Narcotic Drugs and Psychotropic Substances Act, 1985 does not make
any special provision regulating storage of the contraband substances. All that
Section 55 of the Act envisages is that the officer-in-charge of a police station
shall take charge of and keep in safe custody the seized article pending orders of
h the Magistrate concerned. Even so the importance of adequate storage facilities
for safe deposit and storage of the contraband material has been recognised by
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6
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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the Government inasmuch as Standing Order No. 1 of 1989 has made specific
provisions in regard to the same. Section III of the said Order deals with "Receipt
of Drugs in Godowns and Procedure" which inter alia provides that all drugs shall a
invariably be stored in "safes and vaults" provided with double-locking system
and that the agencies of the Central and the State Governments may specifically
designate their godowns for storage purposes and such godowns should be selected
keeping in view their security angle, juxtaposition to courts, etc. (Para 20)
It is evident from a plain reading of Para 3.2 that storage of all drugs in safes
b
and vaults has been made mandatory and that agencies of the Central and the State
Governments have been permitted to designate their godowns for storage purposes.
It is also clear that keeping in view the importance of protecting the seized drugs
against theft, substitution or pilferage the Central Government has prescribed that
such godowns shall be placed under the overall supervision and charge of a gazetted
officer of the respective enforcement agencies who shall exercise utmost care,
C
circumspection and personal supervision over the storage facilities. (Para 21)
The provisions contained in Paras 3.5, 3.6, 3.7 and 3.8 also are aimed at
ensuring that the godown or storage facility is satisfactory and those in-charge
of the same are made accountable for its upkeep and effective management.
Subsequent notification including Notification dated 16-1-2015 have in no way
diluted the above requirement. The result is that there is a statutory framework d
which governs the storage of drugs and matters relating and incidental thereto.
However, the said statutory mechanism has not been effectively implemented by
the Central Government agencies and by the State Governments. (Para 22)
It is evident from the responses received from the State and the Central
Government agencies that no notified storage facility-godown has been established e
for storage of the seized drugs. Even the Narcotics Control Bureau has admitted
to using malkhana of the Courts for storage of the seized drugs in certain cases
and in certain circumstances. The Customs and Central Excise Department and
DRI have also stated that they have no designated storage facility for storage of
contraband. The position in the States is no different. Due to non-availability of
any designated godown-facility with adequate vaults and double-lock system, the f
seized contraband is stored in Police Malkhana which is a common storage facility
for all kinds of goods and weapons seized in connection with all kinds of offences
including those specified by IPC. This is a totally unhappy and unacceptable
situation to say the least. (Para 23)
Even after a lapse of 26 years since Standing Order No. 1 of 1989 was issued,
it has not been complied with. There is as on date hardly any credible protection g
against theft, replacement, pilferage and destruction of the seized drugs on account
of the wholly unsatisfactory and unscientific method of storage of drugs and
psychotropic substances which at times hit the headlines in newspapers on account
of what is often described by the agencies as "big catch" worth crores of rupees in
the international market. The authorities have neglected in realising the importance
h
of the storage facilities and in providing for the same to prevent hazardous and
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7
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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at times lethal substances with great potential to do harm to those who use the
same from being replaced, pilfered, stolen or siphoned out on account of very poor
a supervision, control or invigilation over such storage facilities. (Para 24)
There is a complete failure on the part of the Central Government and its
agencies as also the State Governments in taking adequate steps for providing
proper storage facilities with proper system of supervision and control over the
drugs that are stored in the same. The cumulative effect of the reports submitted
by the States and the Central agencies is that only 16% of the contrabands seized
b between 2002 to 2012 have been actually disposed of. What happened to the
remaining 84% of such seizures is anybody's guess and if it is still lying in
the Police Malkhana, why has nobody ever bothered to apply for their disposal
according to the procedure established by law is hard to fathom. The fact that
the States and the Central Government agencies have accepted that no specific
register is maintained by the State Police and that general malkhana register alone
C is being maintained for the seized drugs shows the neglect of all concerned towards
this important aspect and the cavalier manner in which the issue regarding storage
of seized drugs is approached by them. Absence of periodical inspection of the
storage facility and the absence of any record suggesting that any inspection has
been carried out by any of the officers shows a complete failure bordering criminal
negligence by officers who are supposed to be taking action in this regard but have
d failed to do so. (Para 25)
The menace of drugs in this country, has alarming dimensions and proportions.
Studies based on conferences and seminars have very often shown that the menace
is deep rooted not only because drug lords have the money power and transnational
links but also because the enforcement agencies like the police and at times
e politicians in power help them in carrying on what is known to be a money spinning
and flourishing trade. It is only hoped that such failure is not on account of any
unholy connect between the drug traffickers and the enforcement agencies. It is
thus necessary to issue appropriate directions to the Central Government agencies
and to the States to set up adequate storage facilities with effective supervisory and
regulatory controls as prescribed in Notification No. 1/89. (Para 26)
f Section 52-A as amended provides for disposal of the seized contraband in
the manner stipulated by the Government under Section 52-A(l). Notification
dated 16-1-2015, in supersession of the earlier Notification dated 10-5-2007 not
only stipulates that all drugs and psychotropic substances have to be disposed of but
also identifies the officers who shall initiate action for disposal and the procedure
to be followed for such disposal. Para 4 of the Notification, inter alia, provides
g that officer in charge of the police station shall within 30 days from the date of
receipt of chemical analysis report of drugs, psychotropic substances or controlled
substances apply to any Magistrate under Section 52-A(2) in terms of Annexure 2
to the said Notification. (Para 27)
Para 4(2), Notification dated 16-1-2015 provides that after the Magistrate
allows the application under Section 52-A(3), the officer mentioned in Para 4(1)
h
shall preserve the certified inventory, photographs and samples drawn in the
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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presence of the Magistrate as primary evidence for the case and submit details of
seized items to the Chairman of the Drugs Disposal Committee for a decision by
the Committee on the question of disposal. The officer shall also send a copy of the a
details along with the items seized to the officer in charge of the godown. Para 5 of
the Notification provides for constitution of the Drugs Disposal Committee while
Para 6 specifies the functions which the Committee shall perform. In Para 7 the
Notification provides for procedure to be followed with regard to disposal of the
seized items, while Para 8 stipulates the quantity or the value up to which the
Drugs Disposal Committee can order disposal of the seized items. In terms of b
proviso to Para 8 if the consignments are larger in quantity or of higher value than
those indicated in the Table, the Drugs Disposal Committee is required to send its
recommendations to the head of the department who shall then order their disposal
by a high-level Drugs Disposal Committee specially constituted for that purpose.
Para 9 prescribes the mode of disposal of the drugs, while Para 10 requires the
Committee to intimate to the head of the department the programme of destruction c
and vest the head of the department with the power to conduct a surprise check or
depute an officer to conduct such checks on destruction operation. Para 11 deals
with certificate of destruction while Paras 12 and 13 deal with details of sale to be
entered into the godown register and communication to be sent to the Narcotics
Control Bureau. (Para 28)
There are two other aspects that need to be noted at this stage. The first is that d
Notification dated 16-1-2015 does not in terms supersede Standing Order No. 1
of 1989 insofar as the said standing order also prescribes the procedure to be
followed for disposal of narcotic drugs and psychotropic and controlled substances
and conveyances. Specific overriding of the earlier standing order would have
avoided a certain amount of confusion which is evident on account of simultaneous
presence of Standing Order No. 1/89 and Notification dated 16-1-2015. For e
instance in Para 1 of Standing Order No. 1 of 1989 only certain narcotic
drugs and psychotropic substances enumerated therein could be disposed of
while Notification dated 16-1-2015 provides for disposal of all narcotic drugs
and psychotropic and controlled substances and conveyances. Again in terms
of Standing Order No. 1 of 1989 the procedure for making of application was
marginally different from the one stipulated in Notification dated 16-1-2015 not f
only insofar as the procedure related to the officers who could make the application
is concerned but also in relation to the procedure that the DDC would follow while
directing disposal. In both the Notifications are prescribed the limits up to which the
disposal could be directed. In case of excess quantity the disposal under Standing
Order No. 1 of 1989 had to be done in the presence of the head of the department
whereas according to Notification of 2015 in the event of excess quantity or value
the disposal has to be by a high-level Drug Disposal Committee to be constituted by g
the head of the department. Again while Standing Order No. 1 of 1989 specifically
required the approval of the Court for disposal, Notification dated 16-1-2015 does
not stipulate such approval as a specific condition. Thus the earlier Notification/
Standing Order No. 1 of 1989 must supersede over later notifications to the extent
the subsequent notification prescribes a different procedure. (Para 29)
h
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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In order to avoid any confusion arising out of the continued presence of two
notifications on the same subject it is directed that disposal of narcotic drugs and
a psychotropic and controlled substances and conveyances shall be carried out in the
following manner till such time the Government prescribes a different procedure
for the same: (Para 30)
Cases where the trial is concluded and proceedings in appeal/revision have
all concluded finally: In cases that stood finally concluded at the trial, appeal,
revision and further appeals, if any, before 29-5-1989 the continued storage of drugs
b and narcotic drugs and psychotropic and controlled substances and conveyances
is of no consequence not only because of the considerable lapse of time since
the conclusion of the proceedings but also because the process of certification
and disposal after verification and testing may be an idle formality. It would,
therefore, be just and proper to direct that the Drugs Disposal Committees of the
States and the Central agencies shall take stock of all such seized contrabands and
C take steps for their disposal without any further verification, testing or sampling
whatsoever. The heads of the department concerned shall personally supervise the
process of destruction of drugs so identified for disposal. To the extent the seized
drugs and narcotic substances continue to choke the storage facilities and tempt the
unscrupulous to indulge in pilferage and theft for sale or circulation in the market,
the disposal of the stocks will reduce the hazards that go with their continued
d storage and availability in the market. (Para 30.1)
Drugs that are seized after May 1989 and where the trial and appeal and
revision have also been finally disposed of: In this category of cases while the
seizure may have taken place after the introduction of Section 52-A in the statute
book the non-disposal of the drugs over a long period of time would also make it
difficult to identify individuals who are responsible for pilferage, theft, replacement
e
or such other mischief in connection with such seized contraband. The requirement
of Para 5.5 of Standing Order No. 1 of 1989 for such drugs to be disposed of after
getting the same tested will also be an exercise in futility and impractical at this
distant point in time. Since the trials stand concluded and so also the proceedings in
appeal, revision, etc. insistence upon sending the sample from such drugs for testing
before the same are disposed of will be a fruitless exercise which can be dispensed
f with having regard to the totality of the circumstances and the conditions prevalent
in the malkhanas and the so-called godowns and storage facilities. The DDCs shall
accordingly take stock of all such narcotic drugs and psychotropic and controlled
substances and conveyances in relation to which the trial of the accused persons
has finally concluded and the proceedings have attained finality at all levels in the
judicial hierarchy. The DDCs shall then take steps to have such stock also destroyed
g under the direct supervision of the head of the department concerned. (Para 30.2)
Cases in which the proceedings are still pending before the Courts at the
level of trial court, appellate court or before the Supreme Court: In such cases
the heads of the department concerned shall ensure that appropriate applications
are moved by the officers competent to do so under Notification dated 16-1-2015
before the Drugs Disposal Committees concerned and steps for disposal of such
h narcotic drugs and psychotropic and controlled substances and conveyances taken
without any further loss of time. (Para 30.3)
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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To sum up it is directed as under:
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 a
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(ii) of the Act, which shall be allowed by the
Magistrate as soon as may be required under Section 52-A(3), as discussed in
the body of this judgment under the heading "seizure and sampling" i.e. from
paras 12 to 19. The sampling shall be done under the supervision of the Magistrate b
as discussed in paras 15 to 19 of this order. (Paras 31 and 31.1)
The Central Government and its agencies and so also the State Governments
shall within six months from today take appropriate steps to set up storage
facilities for the exclusive storage of seized narcotic drugs and psychotropic and
controlled substances and conveyances duly equipped with vaults and double-
locking system to prevent theft, pilferage or replacement of the seized drugs. The c
Central Government and the State Governments shall also designate an officer
each for their respective storage facility and provide for other steps, measures as
stipulated in Standing Order No. 1 of 1989 to ensure proper security against theft,
pilferage or replacement of the seized drugs. (Para 31.2)
The Central Government and the State Governments shall be free to set
up a storage facility for each district in the States and depending upon the d
extent of seizure and store required, one storage facility for more than one
districts. (Para 31.3)
Disposal of the seized drugs currently lying in the Police Malkhanas and other
places used for storage shall be carried out by the DDCs concerned in terms of
the directions issued in the body of this judgment under the heading "disposal of
drugs" from para 27 onwards. (Para 31.4) e
Keeping in view the importance of the subject the Chief Justices of the
High Courts concerned are requested to appoint a Committee of Judges on the
administrative side to supervise and monitor progress made by the respective States
in regard to the compliance with the above directions and wherever necessary, to
issue appropriate directions for a speedy action on the administrative and even on
f
the judicial side in public interest wherever considered necessary. (Para 32)
List the appeal for final hearing now on an early date. (Para 33)
SS-D/56308/CR
Advocates who appeared in this case :
Ranjit Kumar, Solicitor General, Ajit Kr. Sinha (Amicus Curiae) and AK. Panda,
Senior Advocates (Ms Binu Tamta, Ms Sushma Manchanda, Pravesh Thakur, Manish 9
Vashishtha, D.S. Mabra and Shreekant N. Terdal, Advocates) for the Appellant;
Sharwan Dogra, Advocate General and Suryanarayana Singh, Senior Additional
Advocate General (Gopal Singh, Rituraj Biswas, Sibo Sankar Mishra, Niranjan Sahu,
Pardeep Kumar (for Mis Corporate Law Group), Ms Hemantika Wahi, Ms Jesal Wahi,
Ms Preetika Dwivedi, Abhinav Mukerji, Ravi Prakash Mehrotra and San jay Sharawat,
Advocates) for the Respondents.
h
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11
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 389

Chronological list of cases cited on page(s)
1. (2012) 7 sec 719 : (2012) 3 sec (Cri) 479, Union of India v. Mohan/al 389c-d
2. (2012) 7 SCC 712: (2012) 3 SCC (Cri) 716, Union of India v.
a Mohan/al 389d-e, 390a, 390d
The Judgment of the Court was delivered by

DR T.S. C.J.-
THAKUR, When this appeal came up for hearing before
us on 11-4-2012, it was contended by the learned counsel for the appellant
Union of India that Standing Order No. 1 of 1989 dated 13-6-1989 which
b prescribes the procedure to be followed for seizure, sampling, safe keeping
and disposal of the seized drugs, narcotics and psychotropic substances is
being followed throughout the country. It was also contended that the Ministry
of Finance, Department of Revenue, Government of India, has in terms of a
Circular dated 23-2-2011 impressed upon the Chief Secretaries and the Police
Heads concerned of the State Governments to ensure that instructions given
C and the procedure prescribed in the Standing Order aforementioned was strictly
adhered to. These submissions notwithstanding, doubts about the procedure
being actually followed persisted. Pilferage of the contraband goods and their
return to the market place for circulation being a major hazard, this Court
appointed 1 Mr Ajit Kumar Sinha, Senior Advocate, as Amicus Curiae, with
a view to making a realistic review of the procedure for search, disposal or
d destruction of the narcotics and the remedial steps that need to be taken to plug
the loopholes, if any.
2. On 3-7-2012 this Court after hearing the Amicus Curiae prima fade
came to the conclusion 2 that the procedure prescribed for the destruction of
the contraband seized in different States was not being followed resulting
in a very piquant situation in which accumulation of huge quantities of the
e
seized drugs and narcotics has increased manifold the chances of their pilferage
for re-circulation in the market. This Court also noted a report published in
the timesofindia.indiatimes.com under the heading "Bathinda's Police Stores
Bursting at Seams with Seized Narcotics" from which it appeared that large
quantities of seized drugs had accumulated over the years including opium,
poppy husk, charas, etc. apart from modern narcotic substances. The report
f
suggested that 39 lakh sedatives and narcotic tablets, 1.10 lakh capsules, over
21,000 drug syrups and 1828 sedative injections apart from 8 kg of smack and
84 kg of ganja were awaiting disposal in Bhatinda Police Stores alone. The
position was, according to Mr Sinha, no better in other States especially those
situate along the international borders. It was argued by the Amicus Curiae that
without proper data from the authorities concerned, it was not possible to take
g
stock of the magnitude of the problem no matter challenges posed by rampant
drug abuse had acquired alarming proportions affecting the youth, some of
whom are driven to commission of crimes on account of deleterious effects of
drug abuse.
h
l Union of buiia v. Mohanlal, (2012) 7 SCC 719: (2012) 3 SCC (Cri) 479
2 Union of Iruiia v. Mohanlal, (2012) 7 SCC 712: (2012) 3 SCC (Cri) 716
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12
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

3. It was in the above backdrop that by an order dated 3-7-2012 passed
in Union of India v. Mohanlal 2 this Court directed collection of information
from the Police Heads of each one of the States through the Chief Secretaries a
concerned in regard to seizure, storage, disposal and destruction of the seized
contraband and judicial supervision over the same. Specific queries were
formulated in the order passed by us with a direction to the Chief Secretaries
of the States concerned to serve the same upon the Directors General of
Police for a report to be forwarded through the Registrars General of the
High Courts of the States concerned who were appointed as Nodal Officers b
for that purpose. The Registrars General were also asked to independently
secure from the District and Sessions Judges concerned in their respective
States, answers to the queries specified under the head "Judicial Supervision".
The Chiefs of Central Government Agencies viz. Narcotics Control Bureau,
Central Bureau of Narcotics, Directorate General of Revenue Intelligence and
Commisionerates of Customs & Central Excise including the Indian Coast c
Guard were directed to issue similar queries to the officers concerned and to
submit their respective reports detailing the information required in terms of
the orders passed by this Court.
4. The queries raised by this Court were in the following words: (Mohanlal
case 2 , sec pp. 716-18, para 12)
d
"12.1. Seizure
(i) What narcotic drugs and psychotropic substances (natural and
synthetic) have been seized in the last 10 years and in what quantity?
Provide yearwise and districtwise details of the seizure made by the
relevant authority.
(ii) What are the steps, if any, taken by the seizing authorities e
to prevent damage, loss and pilferage of the narcotic drugs and
psychotropic substances (natural and synthetic) during seizure/transit?
(iii) What are the circulars/notifications/directions/guidelines, if
any, issued to competent officers to follow any specific procedure in
regard to seizure of contrabands, their storage and destruction? Copies
of the same be attached to the report. f
12.2. Storage
(i) Is there any specified/notified store for storage of the seized
contraband in a State, if so, is the storage space available in each district
or taluka?
(ii) If a store/storage space is not available in each district or g
taluka, where is the contraband sent for storage purposes? Under what
conditions is withdrawal of the contraband permissible and whether a
court order is obtained for such withdrawal?
h
2 Union of /ruiia v. Mohanlal, (2012) 7 SCC 712: (2012) 3 SCC (Cri) 716
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13
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

(iii) What are the steps taken at the time of storage to determine
the nature and quantity of the substance being stored and what are the
a measures taken to prevent substitution and pilferage from the stores?
(iv) Is there any check stock register maintained at the site of
storage and if so, by whom? Is there any periodical check of such
register? If so, by whom? Is any record regarding such periodic
inspection maintained and in what form?
(v) What is the condition of the storage facilities at present? Is there
b any shortage of space or any other infrastructure lacking? What steps
have been taken or are being taken to remove the deficiencies, if any?
(vi) Have any circulars/notifications/directions/guidelines been
issued to competent officers for care and caution to be exercised during
storage? If so, a copy of the same be produced.
C 12.3. Disposal/Destruction
(i) What narcotic drugs and psychotropic substances (natural and
synthetic) have been destroyed in the last 10 years and in what
quantity? Provide yearwise and districtwise details of the destruction
made by the relevant authority. If no destruction has taken place, the
reason therefor.
d (ii) Who is authorised to apply for permission of the court to
destroy the seized contraband? Has there been any failure or dereliction
in making such applications? Whether any person having technical
knowledge of narcotic drugs and psychotropic substances (natural and
synthetic) is associated with the actual process of destruction of the
contraband?
e
(iii) Was any action taken against the person who should have
applied for permission to destroy the drugs or should have destroyed
and did not do so?
(iv) What are the steps taken at the time of destruction to determine
the nature and quantity of the substance being destroyed?
f (v) What are the steps taken by competent authorities to prevent
damage, loss, pilferage and tampering/substitution of the narcotic
drugs and psychotropic substances (natural and synthetic) during
transit from point of storage to point of destruction?
(vi) Is there any specified facility for destruction of contraband in
the State? If so, a list of such facilities along with location and details
g of maintenance, conditions and supervisory bodies be provided.
(vii) If a facility is not available, where is the contraband sent for
destruction purposes? Under whose supervision and what is the entire
procedure thereof?
(viii) Is any record, electronic or otherwise prepared at the
site of destruction of the contraband and by whom? Is there any
h
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14
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

periodical check of such record? What are the ranks/designation of the
supervising officers charged with keeping a check on the same?
12.4. Judicial supervision a
(i) Is any inspection done by the District and Sessions Judge of the
store where the seized drugs are kept? If drugs are lying in the store,
has the Sessions Judge taken steps to have them destroyed?
(ii) Is any report of the inspection conducted, submitted to the
Administrative Judge of the High Court or the Registry of the High b
Court? If so, has any action on the subject being taken for timely
inspection and destruction of the drugs?
(iii) Are there any pending applications for destruction of drugs
in the district concerned, if so, what is the reason for the delay in the
disposal of such application?
(iv) What level officers including the judicial officers are c
associated with the process of destruction?
(v) At what stages are the Magistrates/judicial officers/any other
officer of the court associated with seizure/storage/destruction of
drugs?
(vi) Are there any rules framed by the Court regarding its d
supervisory role in enforcement of the NDPS Act as regards seizure/
storage/destruction of drugs?
(vii) What is the average time for completion of trial of NDPS
matters?"
5. In compliance with the above directions, reports have been submitted
by all the States except the States of Arunachal Pradesh, Jammu and Kashmir, e
Dadar & N agar Haveli, Lakshadweep, N agaland and Pondicherry. From a
perusal of the reports so received the position that emerges in regard to disposal/
destruction of narcotic drugs and psychotropic substance qua each State for the
last 10 years may be summarised as under:
DETAILS OF SEIZURE AND DISPOSAL OF DRUGS
f
(STATEWISE)
5.1. ANDHRA PRADESH
Item Total quantity Total quantity Difference

seized (in JO years) destroyed (in JO years)
. Ganja . 2,20,977.191kg . 3910.70kg . 2,17,066.491 .
!•..............................................
! ,!............................................
: ..................................................................................
i•............................
kg (98.23%) :
i g
! Opium i 22.925 kg ! 0 i 22.925 kg !
!.......................................................... !...........................................;i............................
!,1.................................................................................., (100%) :!
: Charas : 6.5 kg : 0 : 6.5 kg (100%) :
i Cocaine 1 851.096 kg 1 0 1 851.096 1
!
........................................................
i !••••••••••••••••••••••••••••••••••••••••••
:......................................................,
i.: •••••••••••••••••••••••••••.
kg (100%) !
1
! Others i 85.125 kg+ 103 capsules ! 0 i !
!
, ••••••••••••••••••••••••••••
l + 81 injections 26 Amp !
..1..................................................................................................................
i l h
.
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15
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.2. ASSAM
(The information pertains only to the period of 2010-2012)
a
seized (in 10 years) destroyed (in 10 years)
: Ganja : 203.54 kg : 136 kg : 67.54 (33.18%) :
i Heroin 1 .614 kg ! 0 ! .214 kg !
is......................................................................................................................................
i i
, ..........................................
1 (34.853%) i
.s,•••••••••••••••••••••••••••. 1
: Opium : 30 gm : 0 : 30 gm (100%) :
b ! Others 1 7,55,662 Nos. j 41,472 Nos. 1 7,14,190 1
:,
.......................................................
: .....................................................................................................................................................................
: : Nos. (94.5%)
,:
:
.......................................................
5.3. BIHAR

C : Ganja : 45 kg : 0 : 45 kg :
i.........
t~ ........ ] .............. ; E~ ............
] ................. AE~· ......
....................
j ..... ]
i Straws i i i i
i,...........................................................................................................................................................................
Methqualone·······;···············1676 kg···············;····················o···················· ;·······1676.kg········1
,.............................................
.
d Note-No destruction of narcotic drugs and psychotropic substances have
taken place at Patna zonal unit.
5.4. CHHATTISGARH

e . Ganja . 1,03,622.140 kg . 3281.570 kg . 1,00,340.57 .
!................................................
! ,!.....................................................................................................
.:...........................................................................
! (96.77%) :
!
: Cannabis : 52,478 (Nos.) : 380 (Nos.) : 52,098 (Nos.) :
j Plants j j j (92.7%) j
j Brown j 3.120 kg j O j 3.120 kg (100%) j
i Sugar i i 1 1
: Opium : 1.460 kg : 0 : 1.460 kg (100%) :
f i Opium Poppy 1
1558 pieces 0 1558 pieces ! ! !
is...............................................................................................................
Plant i i, ............................................................. .s,i.............................................
(100%) 1
i
i Green Opium i 3600 kg i O i 3600 kg (100%) i
!,...................................................
Plant i 1
i......................................................................................................................................... .!
5.5. CUSTOMS AND CENTRAL EXCISE
g Item Total quantity Total quantity Difference
Opium 367.007 kg 658.525 kg j Destroyed more
.s......................................................................................................................
. .
, .......................................................................
! than seized
.s,.............................................:
.
i Morphine i 58.393 kg ! 190 kg+ 88,930 ! 58.203 kg i
Pcs. Injections !
i........................................................ .:i................................................................................ .:!.............................................................................................................................
(99.6%) i
i
1
! Heroin i 1658.099 kg ! 739.687 kg i 918.412
h !,........................................................!
.1............................................................................. i................................................................................. !t........................................................
kg (55.3%) ,!
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16
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

! Ganja ! 4,84,124.056 kg ! 8,43,008.559 kg ! Destroyed more !
!•...................................................
!,l..................................................................................,
!............................................ ! than seized !•
.s:............................
! Hashish ! 77,350.076 kg ! 12,298.578 kg ! Destroyed more !
:
; ........................................................
:
.i..................................................................................
:
; .................................................................................
.i ........................................................
.i
: than seized : a
! Cocaine ! 640.569 kg ! 0 ! 640.569 !
!
, .............................
!
..1•••••••••••••••••••••••••••••••••••••••••
!
• ............................................
! kg (100%)
• .............................
!
.
5.6. CHANDIGARH

seized (in 10 years) destroyed (in 10 years) b
. Contraband! By relevant authorities . 900.179 kg . 2305.444 .
!s..................................... .s!.. .................................................
3205.623 kg ! ! kg (71 %) , 4!
, ......................................................................................
! Morphine ! 58.393 kg ! 190 kg + 88,930 ! 58.203 kg !
!s.................................................
!
.s.......................................................................
! Pcs. Injections
, .......................................................................
! (99.6%)
, ............................................. ,
!
! Heroin ! 1658.099 kg ! 739.687 kg ! 918.412 !
!s...............................................
!-1.......................................................................... i, ........................................................................... ,!................................................
kg (55.3%) , !
! Ganja ! 4,84,124.056 kg ! 8,43,008.559 kg ! Destroyed more! C
: : : : than seized :
: ................................................ .; ........................................................................... ; ........................................................................... #J ................................................. ,
! Hashish ! 77,350.076 kg ! 12,298.578 kg ! Destroyed more !

: : : : than seized :
i .................................................
.i........................................................................ i ........................................................................ i ............................................. ,;
j Cocaine ! 640.569 kg ! 0 ! 640.569 !
!
l,.................................................................................................................................. ,!....................................................
,i.............................................................................. kg (100%) ,i
5.7. DELHI d
• Delhi has provided two responses. One response has been provided
by the NCB, Delhi and the other by the Police Heads of each of the district.
• The response by NCB, Delhi is as follows:
Item Total quantity Total quantity Difference e

. Contraband ! 8891.8373 kg . 8211.4613 . . 680.376 kg
!,..........................................
! !........................................................................
.a............................................................ i..............................................
kg (92.34%) .!
• The response by the Police Heads is as follows:
Item Total quantity Total quantity Difference f

By relevant authorities
Contraband 32,443.456 kg 52,944.577 kg 20,500.601
(Hashish, kg (38.72%)
Cocaine, Ganja,
. Heroin, etc.) . i .
j Contraband i 10,20,669 kg l 0 i 10,20,669 j g
j (Chemical ! ! i kg (100%) j
l substances i l ! l
l in tablets, ! l I [
· injections) ! ! ! i.
!...........................................................................................................................................................
h
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17
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.8. DAMAN AND DIU
The UT Daman and Diu has informed the total quantity by way of a
a detailed chart:
. Contraband i . 25.827 kg
000 kg . 25.827 kg .
i,............................
l i l .i
.: ...............................................................................................
(100%)
b 5.9. DIRECTORATE OF REVENUE INTELLIGENCE

. Contraband i 1,74,185.687 kg . 2859.448 kg . 1,71,326.239 .
i,............................
l i l kg(98.3%) .i
.: ...............................................................................................
C 5.10. GUJARAT
• The response of the State is divided into two parts.
• One has been provided by the office of the Ministry of Home Affairs.
• As per the said response the total amount of contraband seized in 10
years is 28,340.047 kg. No division of the type has been provided.
• The total destruction in the last 10 years however is only 132.375 kg.
d • The total amount of contraband still in custody of the authorities is
28,207.672 kg i.e. 99.53% of the seized amount.
• The response of the NCB Zonal Unit is as follows:
Item Total quantity . Total quantity Difference
seized (in JO years) i destroyed (in JO years)
. Charas . 1421.14 kg . 15.056 kg . 1406.084 .
e
i i i ! kg(98.9%) !
1
i i i i 17.505 kg i
............................. ~..........................................., ............................................ .$ •••••••••••••••••••••••••••.
Opium 17.505 kg O
i; ............................... i i ! (100%) i
l l
4 ........................................................................................................................ .: .............................................. 1
l Brown l 2.03 kg O l 2.03 kg (100%)
j Sugar j i 1 j
i Heroin l 3.066 kg i O (981 gm of Heroin i 3.066 kg (100%) l
i l i was destroyed in l i
f l: l: l: 2000, however all the j: l:
seizures have been
! ! ! made post-2003) ! !
l Others 1 3766.126 kg+ 299 1 13241.126 kg 1 525 kg
l l 1 + 1022 Tablets l l(86.05%) + 2291 l
i i i l(100%) + 1022 i
l.........................................................................................................................................
l l lTablets (100%) l
g 5.11. GOA
The UT Chandigarh has informed the total quantity by way of a
detailed chart:
. Contraband i 548.746 kg . 000 kg . 548.7476 .
h i,........................................... i .i
!.........................................................................................................................................
! kg (100%)
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18
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.12. HARYANA

seized (in IO years) destroyed (in IO years) a
. Ganja . 2604.077 kg . 521.133 kg . 2082.944 .
is...............................................i i i kg (79%)
.s,............................. 1
i
i i i i 6719.053 i
,l .................................................................................. , ............................................
Charas 7252.513 kg 533.46 kg

i
, ......................................................
i............................................................................. i
, ..............................................................................
i kg (92.64%) ,i
.s,....................................................
i Opium i 1086.387 kg i 1972.860 kg i Destroyed more i
! ! ! ! than seized !
:.................................................
J.........................................................................
; ....................................................................
:...............................................
J
i Smack i 8200.00 kg i 4169.919 kg i 4030.081 i b
is........................................................
i.l ......................................... i, .......................................... i.s,•••••••••••••••••••••••••••.
kg (49.14%) i 1
i Heroin i 1.046 kg i 1.300 kg i Destroyed more i
: ! ! : than seized :
; ............................ .i......................................... ; .......................................... J ............................
:
j Brown j 2.001 kg j 1.003 kg j 998 kg (49.87%) j
i Sugar i i i i
L.......
cocaine ...... 1................
325.kg .............. L...................
o..................L:325 kg (100%) .. J
C
5.13. HIMACHAL PRADESH
The State of Himachal Pradesh has informed the total quantity by way
of a detailed chart:

seized (in IO years) destroyed (in IO years) d
. Contrabandi 17,026.714 kg . 15,169.801 . . 1856.913 kg
i,............................i..................................................................................................................
i i kg (89.09%) .i
5.14. JHARKHAND

seized (in IO years) destroyed (in IO years) e
. Ganja . 1793.381 kg . 0 (area of cultivation . 1793.381 .
i i i has been destroyed) i kg (100%) i
) Opium 1 360.59 kg ) 0 1 360.59 kg j
is............................ i i1•••••••••••••••••••••••••••••••••••••••••• [ (100%) i
-s:•••••••••••••••••••••••••••• :
i i
.i •••••••••••••••••••••••••••••••••••••••••
Brown j 1.576 kg O j 1.576 kg (100%) j
j i
Sugar j 1 i
L.......
Heroin ........ 1............... o..................L.546.kg.(100%) .. l
546 kg ............... L................... f
5.15. KERALA

seized (in IO years) destroyed (in IO years)
. Ganja . 7588.543kg . 2740.926kg . 4847.617 .
i,.....................................................................................................................
i i ! kg (63.88%) .i g
: Heroin : .536 kg : 0 : .536 kg (100%) :
) Hashish ! 12.368 kg ) 0 1 12.368 kg !
is............................ l
,l •••••••••••••••••••••••••••••••••••••••••
i
, ••••••••••••••••••••••••••••••••••••••••••
! (100%)
.s,•••••••••••••••••••••••••••.
i
1
: Charas : .063 kg : 0 : .063 kg (100%) :
1 Brown 1 8.432 kg 1 12.058 kg 1Destroyed more 1
j Sugar j j j than seized j
i Opium i 23.697 kg i O ! 23.697 kg i h
i
, ••••••••••••••••••••••••••••
i i
.1 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
! (100%) i
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19
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.16. KARNATAKA
• The State of Karnataka divided its response in two parts. One is
a seizure by police and the other is seizure by NCB.

Contraband l:. By NCB 000 kg 366.838
366.838 kg kg (100%)
l By relevant authorities 15151.041
b ...........................
1... ....... 27291.633 kg ......... L........ 12,140.592 kg········!._···· kg (55 %)·······
5.17. MAHARASHTRA

. Ganja . 1,14,082 kg . 8750 kg . 1,14,074 kg .
C l l l i (92.33%) l
j Heroin 1 654 kg ) 228 kg i 426 kg (65.13%) 1
1 Charas ! 2364.90 kg ) 471.735 kg 1 1893.165 !
ls............................ !
, ..........................................
l i,-........................................................
.s ...........................................................................
(80.05%) !
.:
j Opium ! 613.044kg ! 47.135kg i 565.909kg !
l i l i (92.31%) l
! Cocaine 1 11.049 kg i 0 kg 1 11.049 kg i
d l,...............................................
l.....................................................................................................................
l i (100%) .i
5.18. MANIPUR
item Total quantity Total quantity Difference
Heroin 37.534 kg 12.498 kg 25.036 kg
. . . . (66.072%) .
e 1 Ganja 1 45,343.25 kg 1 41,963.389 kg 1 3379.861 1
l l l (Kindly refer to the Note) 1 kg (7.45%) l
l Opium i 233.985 kg l 0 i 233.985 l
ls........................................................ l.................................................................................
°' ,l.............................................. .sc !......................................
kg (100%) :l
:, ......................................................
Hashish : 3.05 kg : 0
.a...................................................................................................................................................................
: 3.05 kg (100%) :
, ..................................................... .
Note-The total amount of Ganja seized post-2005 was 25,913.225

f kg and the same is still lying with the authorities since the last pre-trial
disposal in 2005.
5.19. MADHYA PRADESH
• Madhya Pradesh has divided its response in two parts. One is seizure
by Police and the other is seizure by NCB.
g Item Total quantity
seized (in JO years)
Total quantity
destroyed (in JO years)
I Difference in kg
in kg in kg
Contrab~d I::: 8,~434:~8lk~g-I28 6~~:s:~;;5 -7 ~rl~i23

i Destroyed more
h i than seized ..
•....................................................................................................................................................................
~cccc®
20
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.20. MINISTRY OF HOME AFFAIRS, NCB

a
Contraband i By relevant authorities
867.638 4476.482 kg
i•.......................................................................
i i•............................................
1 5344.12 kg
kg (16%)
,i
•........................................................
5.21. ORISSA
• Orissa has divided its response in two parts. One is seizure by police
and the other is seizure by excise officials. b
~~1~::
Contrab~d i:::. 88 kg 0.000 il:fii:~: C

34,520.854 kg (100%) 0.000 By excise
34,520.854
............................ .1.......................................... .:.......................................... .:..... kg (100%) ...... •
5.22. PUNJAB
Item Total quantity Total quantity Difference d

Poppy 8,93,948.452 kg 4,00,678.069 kg 4,93,270.383
. Husk . . . kg (55.17%) .
! Opium ! 4936.031 kg ! 965.818 kg i 3970.213 !
! i ! i kg (80.43%) i
! i i i !
, ........................................................ , .............................................................................. , ............................................................................... .s, ..................................................... ,
Smack 20,045.293 kg 104.631 kg 19,940.662

L ..........................
l.........................................
i........................................~ .....l e
....~~.~?.?.:~?.~!
5.23. RAJASTHAN

Brown 146.996 kg 23.381 kg 123.615 kg
. Sugar . . . (84.094%) j f
! Heroin i 173.216kg ! 3.25kg i 169.966kg !
! i ! i (98.12%) i
) Smack 1 275.246 kg l 82.423 kg 1 192.823 kg 1
!•••••••••••••••••••••••••••••'••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
i ! i (70.05%) i
i i ! i 4680.335 i
A ••••••••••••••••••••••••••· 1
Opium 6687.081 kg 2006.745 kg
i
••••••••••••••••••••••••••••
i
,.........................................,
!............................................. i kg (69.99%) 1!
.: ..............................
i Charas i 935.602 kg i 1192.309 i Destroyed more i g
i i i i than seized i
i i i i 1,74,250.965 i
.................................................. , ......................................................................... , ........................................................................... 4 ..................................................... :
Ganja 1,76,289.677 kg 2578.712 kg

!............................................ ! i
, ...........................................................................................................................
i kg (98.84%) 1!
, A ....................................
: Poppy : 99,684.05 kg : 1,34,652.55 kg : Destroyed more :
Straw i
j•...................................................................................................... i
• ............................................................
1 than seized. j
• ....................................... t
h
~cccc®
IONLINEf
21
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.24. SIKKIM

a seized (in IO years) destroyed (in IO years)
N-10 9156 * 9156 (100%)
. Cap sure . . . j
j Spasmo j 2,77,367 j * j 2,77,367 (100%) j
: Proxyvon : : : :
l Capsule l l 1 1
b !corex/ 1 3033 1 * 1 3033 (100%) 1
i Phensidylere i i j i
\codex i i i i
L.......
others ......... 1......................................... 1.................... *.................. 1..... 203.92.gm ..... .i
** The State Government of Sikkim has replied that the destruction is done
as per the orders of the trial court on the conclusion of trial. However, no
C
details related to disposal has been provided.
5.25. TAMIL NADU

Ganja 6,56,778 kg 19,366.98 kg 6,37,411.02
d j (Dry+ Green) . . . kg (97.051 %) .
: Charas : 13 kg : 1 kg : 12kg (92.30%) :
1·········~:~~:e ·····+-············
!;••••••••••••••••••••••••••••
66i4~gkg ·············1············· 6~5~~ 5k:g ············+oestroy~d more
i.............................
·i!
4!.......................................... ,!•••••••••••••••••••••••••••••••••••••••••• -s, than seized :
i Brown i 0.G15 kg i 0 [ 0.G15 kg (100%) i
e
j Sugar j \ j i
! Opium i 30.4 kg ! 1.738 kg i 29.262 kg !
!;.................................4!...............................................................................................
i !..............................
-sc (96.25%) :!
: Hash Oil : 10 kg : 1 kg : 9 kg (90%) :
1 Tidigesic 1 13,627 vials 1 4095 vials 1 9532 vials 1
j Injection j j j (69.94%) j
l Norphine i 112 amps l 0 i 112 amps !
f is.................................. -'••••••••••••••• ! ...................................................
i, .................................................................................... ! (100%) !
.s,........................................................
l
: Bosikka : 9 : 0 : 9 (100%) :
! Diazepam 1 9.085 kg+ 2706 vials 14.51 (kg or vial not sure) 1 1
! Poppy Cap/ 1 246.75 kg 1 125.05 kg ! 121.7 kg 1
i Straws i i 1 (49.32%) i
i Avil i 350 tabs+ 55 vials i 0 i 350 tabs i
!, ........................................................ .&!.................................................................................................................................................................................................................................
! i + 55 vials ,
!
g
5.26. TRIPURA

. Ganja . 9178.8 . 2642.5 kg . 6536.3 kg .
! ! ! ! (71.21%) !
Ganja_Dust .l............... .l
.......................................................... ,&.................................................................................... .: ............................................................................................................................................ :
h L....... 436 kg···············L. .............. 87 kg .............. L349 kg (80.04%)

~cccc®
IONLINEf
22
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.27. UTTAR PRADESH
• There is huge discrepancy between the quantity seized and the
quantity destroyed. a

. Opium . 1278.016 kg 1079.99 . . 198.025 kg .
i i kg (84.5%) i! i !
i i ! i !
••••••••••••••••••••••••••••• , •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• J ························•··
Smack 455.543 kg 244.443 kg 211.1 kg

i i (46.3%) i i ! b
1
i ! i i i
..................................................................................................................................... , .••••.••.••••••••••••••••••••.••.••••••••• .i •••••••.•••••••.•••.•••••••.
Heroin 503.664 kg 13.759 kg 489.905

i i kg (97.2%) i i i
) Ganja 92,525.859 kg ) 1
11,820.191 kg 80,705.668 1 1
is........................................................
i i ! kg (87.22%) i
, ........................................................................................................................................................................
.s,........................................................,
i Charas ! 9099.432 kg i 2234.481 kg i 6864.951 !
i i i ! kg (75.44%) !
i 1 1 2622.79 kg l i
! ! ! ! !
Intoxicating 3658.065 kg 1035.275 kg C
Powd~r (71.69%)
: (Coca.me) : : : :
: Brown : 51.455 kg
51.355 kg : : 1.1 kg :
l Sugar l l 1 (99.8%) l
i Posta Drug j 16,224.591 kg 5081.988 kg j 11,142.603 i i
i,............................ ! ! i kg (68.67%) .i d
.: ..................................................................................................................
5.28. UTTARAKHAND

. Charas . 1252.091 kg . 330.459 kg . 921.632 kg .
is........................................................
i i..........................................
,l..................................................................................,
! (73.60%)
.; ............................ :
i e
i Doda ! 6783.765 kg i 330.459 kg i 6453.306 i
i i ! ! kg (95.12%) 1i
! ! ! i 27.04 kg !
, ........................................................ .: .................................................................................. , ................................................................................ .s- ........................................................
Opium 28.899 kg 1.859 kg

! i
.......................................................... !,.................................................................................
.:..................................................................................
i (93.567%) :
!
! Heroin ! 154.454 kg ! 0 ! 154.454 !
!s..................................... ,li.................................................................. .s!...........................................
,i...................................................................
kg (100%) i
f
1
j Intoxicating i 22,413 Nos. j 4668 Nos. [ 17745 Nos. [
i Tablets i i i (79.17%) i
j Ganja j 1121.740 kg j 508.300 kg ! 613.44 kg j
i
!s.................................................. i.............................................................................
,l..........................................................................., i
.s!................................................
(54.686%) 1
: Smack : 8.761 kg+ 1022 packets : 0.432 kg+ 530 packets : 8.329 kg :
j j j [ (95.06%)+ !
i l i i 492 Packets !
I I I I (48.140%) I g
i Injection ! 1924 Nos. i 5 Nos. [ 1919 Nos. !
i i i ! (99.74%) t
i
l [ .389 kg (100%) !
.............................................. , ................................................................................................................. ? ................................
j Brown .389 kg j O
Sugar i i i
!.......................................................................................................................................................................
!
:
h
~cccc®
23
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5.29. WEST BENGAL
a seized (in JO years) destroyed (in JO years)
. Contraband ! 88,520.3317 kg . 0 . 88,520.3317 .
!
i,............................ ! ! kg (100%) .i
.: ..................................................................................................................
Note-West Bengal has stated that it does not have any immediate records
available of destruction.
b 6. In regard to the storage ofNDPS substances, the State Governments and
the Central Agencies have furnished information which the learned Amicus
Curiae has tabulated as under:
AnnexureD
Delhi Govt. Gujarat Govt. Guwahati Govt.
Yes, specified store for No specific store. NCB Guwahati Zonal Unit is
C storage of the seized running from a rented house
contraband in Delhi Zonal and one secured room is
Unit. earmarked as storage place.
Manipur Govt. M izo ram Govt. Tripura Govt.
Stored in godown of NCB-1 No specific store. No specific store.
after sealing.
Meghalaya Govt. Uttar Pradesh Govt. Maharashtra Govt., Goa
d and Daman and Diu
Excise Malkhana is U.P. has no specific place for No specific store in
generally used to store storage of the narcotic drugs. Maharashtra for storage.
contraband. In Goa: Malkhana at Police
All district excise office have Station.
their own Malkhana rooms. Daman & Diu and Dadar
& Nagar Haveli: Kept in
e Malkhana Police Station.
Then sent to storage of
competent court after charge-
sheet is filed.
Himachal Pradesh Govt. Chhattisgarh Govt. Andhra Pradesh Govt.
No specified area. No separate storage. No specified area.
Ra.jasthan Govt. Sikkim Govt. Uttarakhand Govt.
f No specified store. No storage. No specific store.
Jharkhand Govt. Kerala Govt. Karnataka Govt.
No specific store. No specific storage. No notified store.
Madhya Pradesh Govt. Orissa Govt. Bihar Govt.
Yes, NCB Zonal Unit, Indore No specific store. Patna Zonal Unit of NCB has
has well-secured specific specified room.
malkhana (Submissions by Withdrawal only under order
g NCB Indore Zonal Unit) of the Court.
No specific store for storage
after seizure by police
station. (Submissions by
Police Heads)
Punjab Govt. Haryana Govt. Chandigarh Govt.
No specified store. Malkhana in all police A room called Malkhana is
stations for storage of specifically designated to
h
contraband narcotics drugs j keep the seized contraband.
and psychotropic substances.
~cccc®
IONLINEf
24
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

i Tamil Nadu i Customs and Central Excise : Directorate of i
! !
I No specific storage space.
i
i No specific storage is
j available.
Revenue Intelligence
No specific store of its own.
a
NCB, Jodhpur Zone NCB, Chandigarh Zone West Bengal
: Yes, but no sub-zone : A separate room has been The seized goods are stored
available.
j::::::: j specified for storage of seized in Police Station Malkhana
contraband.
!::: under the charge of a
designated Police Officer
and supervision of officer in
............................................... i. ............................................... : charge of police station........... b
7. Similarly, in answer to the query as to the steps taken at the time of
storage to determine the nature and the quantity of the substance being stored
and measures to prevent substitution and/or pilferage from the stores, the State
Governments have sent their replies which too have been summarised by the
Amicus Curiae in the following words:
C
Annexure F
(iii) What are the steps taken at the time of storage to determine the
nature and quantity of the substance being stored and measures to prevent
substitution and pilferage from stores?
!:. Delhi Govt. !: Gujarat Govt. Guwahati Manipur Mizoram Tripura
Govt. Govt. Govt. Govt.
l Proper entry : Writer head Complete Complete 1Utmost : Malkhana d
: in malkhana j of police process of process of icare in 1officer-
iregister and !station classification classification 1weighing and \ in-charge
lmalkhana l maintains and weighing and weighing i measurements i carefully
• incharge i muddamal of drugs of drugs 1by officer-in- 1keeps the
and properly i register which along with along with 1charge. 1contraband
locked and j has complete measures of measures of j At p. 1Q 1 of j in the
guarded i details. All prevention prevention : submissions : malkhana
at p. 1o of i subsequent of pilferage of pilferage j by Mizoram j after e
Delhi Govt. l withdrawal mentioned at mentioned at 1Govt. 1maintaining
submission. i and p. 52 of : p. 74 of i i register.
iredisposition Guwahati j Manipur i i At p. 3 of
iare also Govt. : Govt. 1 1submission
ii i: i:
!.;:~::~dd~~al submission. j::::::=:. submission. \ \ by Tripura
f
:~:~~f Govt.
Gujarat Govt.
...................................................
i submission. . i i .
.................................................................................................................................
,:
Meghalaya Uttar Maharashtra Himachal Chhattisgarh Andhra

Govt. Pradesh Govt., Goa Pradesh Govt. Pradesh
Govt. and Daman Govt. Govt.
and Diu g
General duty After seizure Contraband NDPS is Details of During the
of detecting the drug is packed and seized by all steps to storage the
officer to concerned is kept safe with investigating determine the details are
weigh, weighed. Muddamal officer. After nature and entered in
seal the Subsequently Clerk in samples quantity of storage room
contraband a sample is separate are taken, the substance register.
with taken out cupboard. the same is being stored Storeroom is h
signatures of the bag at p. 6. seized by and measures duly sealed
of civilian IO affixing to prevent and armed
~cccc®
IONLINEf
25
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

witnesses land both l Goa: his own seal !substitution !guards/
with proper i are weighed iContraband and later iand pilferage i station watch i
entry in j separately. j packed and resealed by j from stores j are posted. j
a register and j Both the i sealed at SHO before ielaborated j At p. 2 of j
lock it. j sample and ithe spot of consigning iat p. 3 of i A.P. Govt. i
at p. 7 i main stock i seizure. Entry it to the safe i submissions
Annex- j are wrapped iin Mudammal custody \ by
A-2 of iin a piece of register to in Police iChhattisgarh
Meghalaya i cloth and are show chain of Malkhana
Govt. i sealed. movements of the police
• • ... :: The sample
su b rmss10n and its station.
b
Acc. To iis sent for cuSt ody at At p. 3 of
Report of j forensic P· 8 • H.P. Govt.
Comm. of itesting and . Daman & submission.
Customs at ithe main iDiu and
p. 67: j packed is 1Dadar
Stored in i sealed and i & Nagar
Central ikept in the j Haveli:
C Godown in j Malkhana. j There are
safes and j At p. 6 of ivery remote
vaults with i submissions ichances of
double- iby U.P. Govt. i substitution/
locking i j pilferage as
system under l ithe stored 1 1
d
;1 ~~of I==. 1gz~~£;
\P. 9 of the
I
i
I
i
............................................. 1.~~.~~~.1:.~'.:·
......................................................... : ..................... :
Rajasthan Sikkim Govt. Uttarakhand Jharkhand Kerala Govt. Kamataka

e Govt. Govt. Govt. Govt.
i No specific NDPS is NDPS sample Material During
janswer. packed and is sent to objects is recovery a
However sealed under forensic sealed and pinch of the
packing stamp ofIO laboratory. packed substance is
resources and nature For properly. tested with
for storage and quantity preventing P. 9 of the the help of
are used recorded in substitution, response. field drug
f according to presence of details test kit for
quantity and individual entered an indicative
nature of the witnesses. into station test. After
contraband. P. 11 of the diary of the positive
• At p. 2 of response. police station indicative
submission concerned. result, the
by Rajasthan Complete officer
g Govt. safety makes
measures detailed
mentioned inventory.
in Annex-3 The seized
with the govt. goods are
submission. stored in the
P. 5 of the departmental
response. godown or
h the judicial
godown
~cccc®
IONLINEf
26
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

!andonlya !
j representativej
i sample is i
i sent to the i a
ilaboratory i
i for chemical i
j analysis. j
)At p. 10 of i
i submission i
iby i
!Kamataka j b
.,.....................................................................
. . )Govt. i
. ................................................................................................
Madhya Orissa Govt. BiharGovt. Punjab Govt. Haryana Chandigarh
Pradesh Govt. Govt.
Govt.
ByNCB : Seized drugs Seized drugs Police Weekly and Seized
Indore Zonal : are sealed are sealed officials fortnightly contraband
Office. in such a and produced deployed at reports is safely kept C
Seized manner as to before the all NDPS obtained from in Malkhana

contraband minimise the Court and Malkhana all concerned under lock.
wrapped in chances of then stored stores. Case regarding No more
transparent pilferage. in Malkhana Property seized/ details
polythene After after entry in Register storage of mentioned.
and then : producing registers. No. 19 is NDPS. Stock
in white ithe seized P. 3 of maintained. Register is d
cloth before j goods with submission Procedure as maintained
sealing and l permission by Bihar . per Punjab by field units
signing it. l of court the Govt. Police and periodical
Quality and l drugs are Rules, 1934. checking is
amount j deposited in Inspection done.
of seized l malkhana by gazetted At p. 121 of
drug is also lin sealed officers. submission
e
mentioned in : condition Atpp. 16 ofHaryana
the packet with proper and 17 of Govt.
at p. 5 of entry and submission
submissions under the by Punjab
by M.P. custody of Govt.
Govt. Malkhana
~if~
By Police Officer.
Heads of : Pp. 2 and 3 of f
I:::
the Response.
prepared
under S. 55
ofNDPS Act g
at the time
of storage
in the police
station
malkhana
and sealed
by Station
House h
Officer.
~cccc®
IONLINEf
27
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Necessary
entries are
made in the
a Rojnamcha
and seized
property
. register
!maintained
j in the police
!station. !
b j At p. 4 of the j
L~~~?.?.?.~~~
.....1.......................•....................... . . :
................................................................................................
Tamil Nadu Directorate NCB Zonal NCB Zonal Customs and
of Revenue Office, Jodhpur Office, Central Excise
Intelligence Chandigarh
No such instance i The sealed : As per : The seized :The seized
has arisen. : container ! Government j goods are stored icontraband is
C j containing the j of India !lot wise and i deposited in
!seized goods : Notification, !stored under 1the godown/
!is handed over ! Circular No. 1 of ! proper lock and 1malkhana on
j to Custodian ) 1989 p. 3 of the j key under the 1the basis of
!under proper ! response. ! supervision of j the particulars
i documentation. ! ! ITBP Guard. 1mentioned in the
j The inventory, ! l No one other 1seizure memo/
d i seizure memo as j lthan the store- jpanchnama
i well as the paper ! i
in-charge is !Proper and
i seals on the ! l authorised to 1secured packing
i sealed container ! j enter the store. 1and sealing of
j are duly signed i j P. 6 of the j the contraband
i by the panch ! 1ensures its
i witnesses, ! j safety.
i accused and ! jP. 11 ofthe
e i seizing officer. !
i The Custodian i lrespon~
i are responsible !
j for appropriate j
!action to prevent !
i substitution and !
i pilferage. !
f West
Bengal
The seized
goods are
packed, labelled
and sealed by
the Officer and
are handed over
g to the officer-in- i
charge with copy j
~=::
of seizure list. i
Register having I===
h countersign of . . . \
!.dealing. officer. .... l...........................
.l...........................
.l...........................
.l............................
.
~cccc®
IONLINEf
28
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

8. The reports submitted by the State Governments and the Central
Agencies further claim that stock registers maintained at the storage sites are
periodically checked by the staff mentioned in the reports. Another question a
that was asked from the State Governments and the Central Agency relates to
the condition of the storage facilities, shortage of storage facilities, if any, and
whether any steps have been taken or are being taken to remove the deficiencies.
Answers to those queries suggest that no proper storage facilities are available
in most of the States. For instance, in Gujarat no special storage facility is
available for keeping the contraband, which is, therefore, stored in general b
muddamal room. In Assam the NCB Guwahati Zonal Unit is said to be running
from a rented house and one secured room is earmarked for storage with triple-
locking system under the supervision of the Superintendent. In Imphal, the
store room is overflowing with contraband. Since there is shortage of space,
pre-trial disposal process has been initiated to decrease congestion in godowns.
Although Mizoram Government claims that there is no lack of storage facility, c
no information as to any specific storage facility being earmarked for the
purpose has been provided. In Tripura the enforcement branch is said to be
maintaining the malkhana used for storage of contraband. In Himachal Pradesh
there is no storage facility except an old building used for the purpose, while
in Chhattisgarh the storage facility is satisfactory but not sufficient for bulk d
storage. Similarly, Rajasthan has scarcity of storage facility. Jharkhand has no
separate storage facility at all whereas Kerala has satisfactory storage facilities
only in some of the districts. In Orissa and Bihar the storage facilities are totally
insufficient and unsatisfactory. The States of Haryana, Madhya Pradesh, Goa,
Daman Diu and Dadar & N agar Haveli and Andhra Pradesh claim to have no
problems with storage facility while Tamil N adu does not have any separate e
storage.
9. Directorate of Revenue Intelligence has not provided any information
while NCB Zonal Office, Jodhpur has no shortage of space. NCB Zonal Office,
Chandigarh has reported insufficiency of space and has started the process for
construction of a specified storage facility. The Customs and Central Excise
f
Authority has reported that their godown is full and no more space is available.
10. In answer to the question as to who is authorised to apply to the
Court to destroy the seized contraband and whether there has been any failure
or dereliction in making such applications and whether any person having
technical knowledge of narcotic drugs and psychotropic substance (natural and
synthetic) is associated with the process of destruction of the contraband, the 9
reply submitted by the State Governments suggest that different persons in
different States have been authorised to make such applications to the Courts
concerned except in Tripura where no particular person is authorised. In some
cases officer in charge of the police station has been authorised while in others
the investigating officer is also empowered to apply for permission to destroy
the contraband. In answer to the question whether any action has been taken h
against anyone who should have applied for permission to destroy the narcotics
~cccc®
IONLINEf
29
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

but had not done so, the State Governments have all answered in the negative
implying thereby that either no dereliction of duty has occurred on the part of
a any officer competent to apply for destruction or no action has been taken for
any such dereliction.
11. Similarly, regarding the steps taken at the time of destruction to
determine the nature and quantity of the substance being destroyed, the
reports submitted by the State Governments give varying answers. There is no
uniformity in the procedure adopted by those associated or in charge of the
b process of destruction. The reports suggest as if adequate steps are taken to
prevent damage, loss, pilferage and tampering/substitution of the narcotic drugs
and psychotropic substances from the point of search to the point of destruction
but there is no uniformity or standard procedure prescribed or followed in that
regard. Having said that we must mention that we are in these proceedings
concerned with the following three issues only for the present:
C
(i) Seizure and sampling of the narcotic drugs and psychotropic
substances,
(ii) their storage, and
(iii) their destruction.
Seizure and sampling
d 12. Section 52-A(l) of the NDPS Act, 1985 empowers the Central
Government to prescribe by a notification the procedure to be followed for
seizure, storage and disposal of drugs and psychotropic substances. The Central
Government has in exercise of that power issued Standing Order No. 1 of 1989
which prescribes the procedure to be followed while conducting seizure of the
contraband. Two subsequent standing orders one dated 10-5-2007 and the other
e dated 16-1-2015 deal with disposal and destruction of seized contraband and
do not alter or add to the earlier standing order that prescribes the procedure
for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that
samples must be taken from the seized contraband on the spot at the time of
recovery itself. It reads:
f "2.2. All the packages/containers shall be serially numbered and kept

in lots for sampling. Samples from the narcotic drugs and psychotropic
substances seized, shall be drawn on the spot of recovery, in duplicate, in the
presence of search witnesses (panchas) and the person from whose possession
the drug is recovered, and a mention to this effect should invariably be made
in the panchnama drawn on the spot."
g 13. Most of the States, however, claim that no samples are drawn at the
time of seizure. Directorate of Revenue Intelligence is by far the only agency
which claims that samples are drawn at the time of seizure, while Narcotics
Control Bureau asserts that it does not do so. There is thus no uniform practice
or procedure being followed by the States or the Central agencies in the
matter of drawing of samples. This is, therefore, an area that needs to be
h suitably addressed in the light of the statutory provisions which ought to be
strictly observed given the seriousness of the offences under the Act and the
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30
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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punishment prescribed by law in case the same are proved. We propose to deal
with the issue no matter briefly in an attempt to remove the confusion that
prevails regarding the true position as regards drawing of samples. a
14. Section 52-A as amended by Act 16 of 2014, deals with disposal of
seized drugs and psychotropic substances. It reads:
"52-A. Disposal of seized narcotic drugs and psychotropic substances.
-(1) The Central Government may, having regard to the hazardous nature
of any narcotic drugs or psychotropic substances, their vulnerability to
theft, substitution, constraints of proper storage space or any other relevant b
considerations, by notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of narcotic drugs or class of
psychotropic substances which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as that Government may, from
time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized c
and forwarded to the officer in charge of the nearest police station or to the
officer empowered under Section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such narcotic drugs or psychotropic substances
containing such details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars of the narcotic
drugs or psychotropic substances or the packing in which they are packed, d
country of origin and other particulars as the officer referred to in sub-section
(1) may consider relevant to the identity of the narcotic drugs or psychotropic
substances in any proceedings under this Act and make an application, to any
Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs e
or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances,
in the presence of such Magistrate and certifying the correctness of any list
of samples so drawn.
(3) When an application is made under sub-section (2), the Magistrate
shall, as soon as may be, allow the application. f
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872
(1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the inventory, the photographs of
narcotic drugs, psychotropic substances, controlled substances or conveyances
and any list of samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence." g
15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of
the contraband the same has to be forwarded either to the officer-in-charge
of the nearest police station or to the officer empowered under Section 53
who shall prepare an inventory as stipulated in the said provision and make an
application to the Magistrate for purposes of (a) certifying the correctness of the h
inventory, (b) certifying photographs of such drugs or substances taken before
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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the Magistrate as true, and (c) to draw representative samples in the presence
of the Magistrate and certifying the correctness of the list of samples so drawn.
a 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as
soon as may be allow the application. This implies that no sooner the seizure
is effected and the contraband forwarded to the officer-in-charge of the police
station or the officer empowered, the officer concerned is in law duty-bound to
approach the Magistrate for the purposes mentioned above including grant of
permission to draw representative samples in his presence, which samples will
b then be enlisted and the correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of samples has to be in
the presence and under the supervision of the Magistrate and the entire exercise
has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more
often than not, takes place in the absence of the Magistrate does not in the above
C scheme of things arise. This is so especially when according to Section 52-A(4)
of the Act, samples drawn and certified by the Magistrate in compliance with
sub-sections (2) and (3) of Section 52-A above constitute primary evidence for
the purpose of the trial. Suffice it to say that there is no provision in the Act that
mandates taking of samples at the time of seizure. That is perhaps why none of
the States claim to be taking samples at the time of seizure.
d 18. Be that as it may, a conflict between the statutory provision governing
taking of samples and the Standing Order issued by the Central Government
is evident when the two are placed in juxtaposition. There is no gainsaid
that such a conflict shall have to be resolved in favour of the statute on first
principles of interpretation but the continuance of the statutory notification in
its present form is bound to create confusion in the minds of the authorities
e concerned instead of helping them in the discharge of their duties. The Central
Government would, therefore, do well, to re-examine the matter and take
suitable steps in the above direction.
19. Mr Sinha, learned Amicus Curiae, argues that if an amendment of the
Act stipulating that the samples be taken at the time of seizure is not possible,
the least that ought to be done is to make it obligatory for the officer conducting
f
the seizure to apply to the Magistrate for drawing of samples and certification,
etc. without any loss of time. The officer conducting the seizure is also obliged
to report the act of seizure and the making of the application to the superior
officer in writing so that there is a certain amount of accountability in the
entire exercise, which as at present gets neglected for a variety of reasons.
There is in our opinion no manner of doubt that the seizure of the contraband
g
must be followed by an application for drawing of samples and certification
as contemplated under the Act. There is equally no doubt that the process of
making any such application and resultant sampling and certification cannot be
left to the whims of the officers concerned. The scheme of the Act in general
and Section 52-A in particular, does not brook any delay in the matter of making
of an application or the drawing of samples and certification. While we see
h
no room for prescribing or reading a time-frame into the provision, we are of
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32
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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the view that an application for sampling and certification ought to be made
without undue delay and the Magistrate on receipt of any such application will
be expected to attend to the application and do the needful, within a reasonable a
period and without any undue delay or procrastination as is mandated by sub-
section (3) of Section 52-A (supra). We hope and trust that the High Courts
will keep a close watch on the performance of the Magistrates in this regard
and through the Magistrates on the agencies that are dealing with the menace
of drugs which has taken alarming dimensions in this country partly because of
the ineffective and lackadaisical enforcement of the laws and procedures and b
cavalier manner in which the agencies and at times Magistracy in this country
addresses a problem of such serious dimensions.
Storage
20. The Narcotic Drugs and Psychotropic Substances Act, 1985 does not
make any special provision regulating storage of the contraband substances.
All that Section 55 of the Act envisages is that the officer-in-charge of a police c
station shall take charge of and keep in safe custody the seized article pending
orders of the Magistrate concerned. There is no provision nor was any such
provision pointed out to us by the learned counsel for the parties prescribing the
nature of the storage facility to be used for storage of the contraband substances.
Even so the importance of adequate storage facilities for safe deposit and
storage of the contraband material has been recognised by the Government d
inasmuch as Standing Order No. 1 of 1989 has made specific provisions in
regard to the same. Section III of the said Order deals with "Receipt of Drugs
in Godowns and Procedure" which inter alia provides that all drugs shall
invariably be stored in "safes and vaults" provided with double-locking system
and that the agencies of the Central and the State Governments may specifically
designate their godowns for storage purposes and such godowns should be e
selected keeping in view their security angle, juxtaposition to courts, etc. We
may usefully extract Paras 3.2 to 3.9 comprising Section III supra at this stage
for ready reference:
"3.2. All drugs invariably be stored in safes and vaults provided with
double-locking system. Agencies of the Central and State Governments, may
f
specifically, designate their godowns for storage purposes. The godowns
should be selected keeping in view their security angle, juxtaposition to courts,
etc.
3.3. Such godowns, as a matter of rule, shall be placed under the
overall supervision and charge of a gazetted officer of the respective
enforcement agency, who shall exercise utmost care, circumspection and
personal supervision as far as possible. Each seizing officer shall deposit the g
drugs fully packed and sealed in the godown within 48 hours of such seizure,
with a forwarding memo indicating NDPS crime number as per Crime and
Prosecution (C&P Register) under the new law, name of the accused, reference
of test memo, description of the drugs, total number of packages/containers,
etc.
3.4. The seizing officer, after obtaining an acknowledgement for such h
deposit in the format (Annexure I), shall hand over such acknowledgment to
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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the investigating officer of the case along with the case dossiers for further
proceedings.
a 3.5. The officer in charge of the godown, before accepting the deposit of
drugs, shall ensure that the same are properly packed and sealed. He shall also
arrange the packages/containers ( case wise and lot wise) for quick retrieval,
etc.
3.6. The godown-in-charge is required to maintain a register wherein
entries of receipt should be made as per format at Annexure II.
3. 7. It shall be incumbent upon the inspecting officers of the various
b
departments mentioned at Annexure II to make frequent visits to the godowns
for ensuring adequate security and safety and for taking measures for timely
disposal of drugs. The inspecting officers should record their remarks/
observations against Column 15 of the Format at Annexure IL
3.8. The Heads of the respective enforcement agencies (both Central and
State Governments) may prescribe such periodical reports and returns, as they
C may deem fit, to monitor the safe receipt, deposit, storage, accounting and
disposal of seized drugs.
3.9. Since the early disposal of drugs assumes utmost consideration
and importance, the enforcement agencies may obtain orders for pre-trial
disposal of drugs and other articles (including conveyance, if any) by
having recourse to the provisions of sub-section (2) of Section 52-A of the
d Act." (emphasis in original)
21. It is evident from a plain reading of Para 3.2 (supra) that storage
of all drugs in safes and vaults has been made mandatory and that agencies
of the Central and the State Governments have been permitted to designate
their godowns for storage purposes. It is also clear that keeping in view the
importance of protecting the seized drugs against theft, substitution or pilferage
e the Central Government has prescribed that such godowns shall be placed
under the overall supervision and charge of a gazetted officer of the respective
enforcement agencies who shall exercise utmost care, circumspection and
personal supervision over the storage facilities.
22. The provisions contained in Paras 3.5, 3.6, 3.7 and 3.8 also are
aimed at ensuring that the godown or storage facility is satisfactory and those
f in-charge of the same are made accountable for its upkeep and effective
management. Subsequent notification including Notification dated 16-1-2015
have in no way diluted the above requirement. The result is that there is a
statutory framework which governs the storage of drugs and matters relating
and incidental thereto. The question is whether the said statutory mechanism
has been effectively implemented by the Central Government agencies and by
g the State Governments. Our answer regretfully is in the negative.
23. It is evident from the responses received from the State and the
Central Government agencies that no notified storage facility-godown has been
established for storage of the seized drugs. Even the Narcotics Control Bureau
has admitted to using malkhana of the Courts for storage of the seized drugs
in certain cases and in certain circumstances. The Customs and Central Excise
h Department and DRI have also stated that they have no designated storage
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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facility for storage of contraband. The position in the States is no different.
Due to non-availability of any designated godown-facility with adequate vaults
and double-lock system, the seized contraband is stored in Police Malkhana a
which is a common storage facility for all kinds of goods and weapons seized
in connection with all kinds of offences including those specified by IPC. This
is a totally unhappy and unacceptable situation to say the least.
24. It is indeed unfortunate that even after a lapse of 26 years since Standing
Order No. 1 of 1989 was issued, the Central Government or its agencies and
the State Governments have paid little or no attention to the need for providing b
adequate storage facilities of the kind stipulated in Standing Order No. 1 of
1989 with the necessary supervisory and other controls prescribed in Section
III of the said order. The result is that while Standing Order No. 1 of 1989
very early in point of time recognised the need for providing adequate and
effective storage facilities by the States and the Central Government agencies,
the failure on the part of the Central Government and the State Governments c
to provide for such storage has defeated, if not completely negated the very
purpose underlying the said notification and the provisions made therein. There
is as on date hardly any credible protection against theft, replacement, pilferage
and destruction of the seized drugs on account of the wholly unsatisfactory and
unscientific method of storage of drugs and psychotropic substances which at
times hit the headlines in newspapers on account of what is often described d
by the agencies as "big catch" worth crores of rupees in the international
market. What has defied our understanding is the neglect on the part of the
Central Government and its agencies and the State Governments in realising
the importance of the storage facilities and in providing for the same to prevent
hazardous and at times lethal substances with great potential to do harm to
those who use the same from being replaced, pilfered, stolen or siphoned out e
on account of very poor supervision, control or invigilation over such storage
facilities.
25. The learned Amicus Curiae has in that view very rightly argued that
there is a complete failure on the part of the Central Government and its
agencies as also the State Governments in taking adequate steps for providing
proper storage facilities with proper system of supervision and control over f
the drugs that are stored in the same. It was contended by Mr Sinha, and in
our opinion rightly so, that the cumulative effect of the reports submitted by
the States and the Central agencies is that only 16% of the contraband seized
between 2002 to 2012 have been actually disposed of. What happened to the
remaining 84% of such seizures is anybody's guess and if it is still lying in
the Police Malkhana, why has nobody ever bothered to apply for their disposal 9
according to the procedure established by law is hard to fathom. The fact
that the States and the Central Government agencies have accepted that no
specific register is maintained by the State Police and that general malkhana
register alone is being maintained for the seized drugs shows the neglect of
all concerned towards this important aspect and the cavalier manner in which
the issue regarding storage of seized drugs is approached by them. Absence h
of periodical inspection of the storage facility and the absence of any record
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35
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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suggesting that any inspection has been carried out by any of the officers shows
a complete failure bordering criminal negligence by officers who are supposed
a to be taking action in this regard but have failed to do so.
26. The menace of drugs in this country, as observed earlier has alarming
dimensions and proportions. Studies based on conferences and seminars have
very often shown that the menace is deep rooted not only because drug lords
have the money power and transnational links but also because the enforcement
agencies like the police and at times politicians in power help them in carrying
b on what is known to be a money spinning and flourishing trade. We only hope
that the failure of the Central Government agencies and the State Governments
in providing what is the bare minimum in terms of infrastructure required to
arrest the growing menace and prevent pilferage and re-circulation of drugs
back into the market is not on account of any unholy connect between the
drug traffickers and the enforcement agencies. We would comfort ourselves by
c presuming them to be relatable only to apathy and indifference and hope that
the system does not get corrupted by continued neglect lest all hopes are lost
in the fight against drug menace which are eating into the vitals of our society.
It is in that spirit that we deem it necessary to issue appropriate directions to
the Central Government agencies and to the States to set up adequate storage
facilities with effective supervisory and regulatory controls as prescribed in
d Notification No. 1/89.
Disposal of drugs
27. Section 52-A as amended provides for disposal of the seized contraband
in the manner stipulated by the Government under sub-section (1) of
that section. Notification dated 16-1-2015, in supersession of the earlier
Notification dated 10-5-2007 not only stipulates that all drugs and psychotropic
e substances have to be disposed of but also identifies the officers who shall
initiate action for disposal and the procedure to be followed for such disposal.
Para 4 of the Notification, inter alia, provides that officer in charge of the
police station shall within 30 days from the date of receipt of chemical analysis
report of drugs, psychotropic substances or controlled substances apply to
any Magistrate under Section 52-A(2) in terms of Annexure 2 to the said
f Notification.
28. Sub-para (2) of Para 4 provides that after the Magistrate allows the
application under sub-section (3) of Section 52-A, the officer mentioned in
sub-para (1) of Para 4 shall preserve the certified inventory, photographs and
samples drawn in the presence of the Magistrate as primary evidence for the
case and submit details of seized items to the Chairman of the Drugs Disposal
g
Committee for a decision by the Committee on the question of disposal.
The officer shall also send a copy of the details along with the items seized
to the officer in charge of the godown. Para 5 of the Notification provides
for constitution of the Drugs Disposal Committee while Para 6 specifies the
functions which the Committee shall perform. In Para 7 the Notification
provides for procedure to be followed with regard to disposal of the seized
h
items, while Para 8 stipulates the quantity or the value up to which the Drugs
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Disposal Committee can order disposal of the seized items. In terms of proviso
to Para 8 if the consignments are larger in quantity or of higher value than
those indicated in the Table, the Drugs Disposal Committee is required to a
send its recommendations to the head of the department who shall then order
their disposal by a high-level Drugs Disposal Committee specially constituted
for that purpose. Para 9 prescribes the mode of disposal of the drugs, while
Para 10 requires the Committee to intimate to the head of the Department
the programme of destruction and vest the head of the Department with the
power to conduct a surprise check or depute an officer to conduct such checks b
on destruction operation. Para 11 deals with certificate of destruction while
Paras 12 and 13 deal with details of sale to be entered into the godown register
and communication to be sent to the Narcotics Control Bureau.
29. There are two other aspects that need to be noted at this stage. The first
is that Notification dated 16-1-2015 does not in terms supersede Standing Order
No. 1 of 1989 insofar as the said standing order also prescribes the procedure c
to be followed for disposal of narcotic drugs and psychotropic and controlled
substances and conveyances. Specific overriding of the earlier standing order
would have avoided a certain amount of confusion which is evident on account
of simultaneous presence of Standing Order No. 1 of 1989 and Notification
dated 16-1-2015. For instance in Para 1 of Standing Order No. 1 of 1989 only d
certain narcotic drugs and psychotropic substances enumerated therein could
be disposed of while Notification dated 16-1-2015 provides for disposal of all
narcotic drugs and psychotropic and controlled substances and conveyances.
Again in terms of Standing Order No. 1 of 1989 the procedure for making
of application was marginally different from the one stipulated in Notification
dated 16-1-2015 not only insofar as the procedure related to the officers who
e
could make the application is concerned but also in relation to the procedure
that the DDC would follow while directing disposal. In both the Notifications
are prescribed the limits up to which the disposal could be directed. In case of
excess quantity the disposal under Standing Order No. 1 of 1989 had to be done
in the presence of the head of the department whereas according to Notification
of 2015 in the event of excess quantity or value the disposal has to be by a high- f
level Drug Disposal Committee to be constituted by the head of the department.
Again while Standing Order No. 1 of 1989 specifically required the approval
of the Court for disposal, Notification dated 16-1-2015 does not stipulate such
approval as a specific condition. Be that as it may, to the extent the subsequent
notification prescribes a different procedure, we treat the earlier Notification/
Standing Order No. 1 of 1989 to have been superseded. g
30. In order to avoid any confusion arising out of the continued presence of
two notifications on the same subject we make it clear that disposal of narcotic
drugs and psychotropic and controlled substances and conveyances shall be
carried out in the following manner till such time the Government prescribes
a different procedure for the same:
h
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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30.1. Cases where the trial is concluded and proceedings in appeal/
revision have all concluded finally: In cases that stood finally concluded at
a the trial, appeal, revision and further appeals, if any, before 29-5-1989 the
continued storage of drugs and narcotic drugs and psychotropic and controlled
substances and conveyances is of no consequence not only because of the
considerable lapse of time since the conclusion of the proceedings but also
because the process of certification and disposal after verification and testing
may be an idle formality. We say so because even if upon verification and
b further testing of the seized contraband in such already concluded cases it is
found that the same is either replaced, stolen or pilferaged, it will be difficult if
not impossible to fix the responsibility for such theft, replacement or pilferage
at this distant point in time. That apart, the storage facility available with the
States, in whatever satisfactory or unsatisfactory conditions the same exist, are
reported to be overflowing with seized contraband goods. It would, therefore,
C be just and proper to direct that the Drugs Disposal Committees of the States
and the Central agencies shall take stock of all such seized contraband and take
steps for their disposal without any further verification, testing or sampling
whatsoever. The heads of the department concerned shall personally supervise
the process of destruction of drugs so identified for disposal. To the extent the
seized drugs and narcotic substances continue to choke the storage facilities and
d tempt the unscrupulous to indulge in pilferage and theft for sale or circulation
in the market, the disposal of the stocks will reduce the hazards that go with
their continued storage and availability in the market.
30.2. Drugs that are seized after May 1989 and where the trial and appeal
and revision have also been finally disposed of: In this category of cases while
the seizure may have taken place after the introduction of Section 52-A in the
e statute book the non-disposal of the drugs over a long period of time would also
make it difficult to identify individuals who are responsible for pilferage, theft,
replacement or such other mischief in connection with such seized contraband.
The requirement of Para 5.5 of Standing Order No. 1 of 1989 for such drugs to
be disposed of after getting the same tested will also be an exercise in futility
and impractical at this distant point in time. Since the trials stand concluded
f and so also the proceedings in appeal, revision, etc. insistence upon sending
the sample from such drugs for testing before the same are disposed of will be
a fruitless exercise which can be dispensed with having regard to the totality
of the circumstances and the conditions prevalent in the malkhanas and the
so-called godowns and storage facilities. The DDCs shall accordingly take
stock of all such narcotic drugs and psychotropic and controlled substances and
g conveyances in relation to which the trial of the accused persons has finally
concluded and the proceedings have attained finality at all levels in the judicial
hierarchy. The DDCs shall then take steps to have such stock also destroyed
under the direct supervision of the head of the department concerned.
30.3. Cases in which the proceedings are still pending before the Courts
at the level of trial court, appellate court or before the Supreme Court: In
h such cases the heads of the department concerned shall ensure that appropriate
applications are moved by the officers competent to do so under Notification
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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dated 16-1-2015 before the Drugs Disposal Committees concerned and steps
for disposal of such narcotic drugs and psychotropic and controlled substances
and conveyances taken without any further loss of time. a
31. To sum up we direct as under:
31.1. 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 b
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.
31.2. The Central Government and its agencies and so also the State
Governments shall within six months from today take appropriate steps to c
set up storage facilities for the exclusive storage of seized narcotic drugs and
psychotropic and controlled substances and conveyances duly equipped with
vaults and double-locking system to prevent theft, pilferage or replacement of
the seized drugs. The Central Government and the State Governments shall also
designate an officer each for their respective storage facility and provide for
other steps, measures as stipulated in Standing Order No. 1 of 1989 to ensure d
proper security against theft, pilferage or replacement of the seized drugs.
31.3. The Central Government and the State Governments shall be free
to set up a storage facility for each district in the States and depending upon
the extent of seizure and store required, one storage facility for more than one
districts.
e
31.4. Disposal of the seized drugs currently lying in the Police Malkhanas
and other places used for storage shall be carried out by the DDCs concerned
in terms of the directions issued by us in the body of this judgment under the
heading "disposal of drugs".
32. Keeping in view the importance of the subject we request the Chief
Justices of the High Courts concerned to appoint a Committee of Judges f
on the administrative side to supervise and monitor progress made by the
respective States in regard to the compliance with the above directions and
wherever necessary, to issue appropriate directions for a speedy action on
the administrative and even on the judicial side in public interest wherever
considered necessary.
33. List the appeal for final hearing now on an early date. g
h
39
2023 LiveLaw (SC) 570
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
ABHAY S.OKA; J., RAJESH BINDAL; J.
May 09, 2023.
CRIMINAL APPEAL NO.1443 OF 2023 (Arising out of S.L.P.(Crl.) No. 1958 of 2023)
SIMARNJIT SINGH versus STATE OF PUNJAB
Narcotics Drugs and Psychotropic Substances Act, 1985; Section 52-A - the
process of drawing of samples under Section 52-A of the NDPS Act has to be in the
presence and under the supervision of the Magistrate. The entire exercise of
collecting the sample must be certified by the Magistrate to be correct. (Para 8, Relied
on Union of India v. Mohanlal, (2016) 3 SCC 379)
(Arising out of impugned final judgment and order dated 31-08-2022 in CRAS No. 2030/2006 passed by
the High Court of Punjab & Haryana at Chandigarh)
For Petitioner(s) Mr. Puneet Jain, Adv. Mr. Harshit Khanduja, Adv. Mr. Harsh Jain, Adv. Mr. Himanshu
Satija, Adv. Mr. Umang Mehta, Adv. Mr. Harsh Saxena, Adv. Ms. Sujal Gupta, Adv. Mr. B. K. Satija, AOR
For Respondent(s) Mr. Karan Sharma, AOR Mr. Mohit Siwach, Adv. Mr. Rishabh Sharma, Adv.
ORDER
Leave granted.
2. Heard the learned counsel appearing for the parties.
3. We make it clear that out of the 3 accused who were before the High Court, only
the present appellant has come by way of this appeal.
3. The appellant was convicted by the Special Judge under the Narcotics Drugs and
Psychotropic Substances Act, 1985 (for short "the NDPS Act") for the offence punishable
under Section 15 of the said Act. The appeal preferred by the present appellant has been
dismissed by the impugned judgment of the High Court.
4. The case of the prosecution in brief is that SI Hardeep Singh (PW-7) along with
other police officers were present at a bridge on a canal in the area of village Balak Khurd
for the purposes of patrolling. When they noticed that a tempo coming from the side of
village Matran, they signalled the tempo to stop. The driver and other two persons sitting
in the tempo were apprehended. According to the case of the prosecution, search was
conducted in the presence of the District Superintendent of Police of the tempo which led
to recovery of eight bags of poppy husk which were concealed under tarpaulin. From each
bag, two samples of 250 gms were taken out and made into sixteen parcels and residue
of poppy husk in each bag was found to be of 29.5 kgs.
5. The learned counsel appearing for the appellant relied upon a decision of this Court
in the case of Union of India v. Mohanlal & Anr.1. He submitted that the prosecution is
vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-
section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-
Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately
after the seizure.
6. The learned counsel appearing for the respondent-State supported the impugned
judgments.
1 (2016) 3 SCC 379

1
40
7. We have perused the evidence of PW-7 Hardeep Singh in which he has stated that
from the eight bags of poppy husk, two samples of 250 gms each were drawn and
converted into 16 parcels. This has been done
immediately after the seizure.
8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case1, it was held
thus:
“15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the
same has to be forwarded either to the officerin-charge of the nearest police station or to the
officer empowered under Section 53 who shall prepare an inventory as stipulated in the said
provision and make an application to the Magistrate for purposes of (a) certifying the correctness
of the inventory, (b) certifying photographs of such drugs or substances taken before the
Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and
certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow
the application. This implies that no sooner the seizure is effected and the contraband forwarded
to the officer-in-charge of the police station or the officer empowered, the officer concerned is in
law duty-bound to approach the Magistrate for the purposes mentioned above including grant of
permission to draw representative samples in his presence, which samples will then be enlisted
and the correctness of the list of samples so drawn certified by the Magistrate. In other words,
the process of drawing of samples has to be in the presence and under the supervision of the
Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes
place in the absence of the Magistrate does not in the above scheme of things arise. This is so
especially when according to Section 52-A(4) of the Act, samples drawn and certified by the
Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that
mandates taking of samples at the time of seizure. That is perhaps why none of the States claim
to be taking samples at the time of seizure.”
9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure
is not in conformity with the law laid down by this Court in the case of Mohanlal1. This
creates a serious doubt about the prosecution's case that substance recovered was a
contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not
been established beyond a reasonable doubt. Accordingly, we set aside the impugned
judgments insofar as the present appellant is concerned and quash his conviction and
sentence.
11. The appeal is accordingly allowed.
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CRIMINAL APPELLATE JURISDICTION
ABHAY S. OKA; J., PANKAJ MITHAL; J.
OCTOBER 13, 2023.
CRIMINAL APPEAL NO. 3191 OF 2023 [Arising out of SLP (Crl.) No. 3010 of 2023]
YUSUF @ ASIF versus STATE
Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A – Disposal of
seized narcotic drugs and psychotropic substances - In the absence of any material
on record to establish that the samples of the seized contraband were drawn in the
presence of the Magistrate and that the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said seized contraband and the
samples drawn therefrom would not be a valid piece of primary evidence in the trial.
Once there is no primary evidence available, the trial as a whole stand vitiated. (Para
16)
seized narcotic drugs and psychotropic substances - No evidence has also been
brought on record that the samples were drawn in the presence of the Magistrate
and the list of the samples so drawn were certified by the Magistrate. The mere fact
that the samples were drawn in the presence of a gazetted officer is not sufficient
compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. The
failure of the concerned authorities to lead primary evidence vitiates the conviction
and as such in our opinion, the conviction of the accused deserves to be set aside.
(Para 13, 17)
seized narcotic drugs and psychotropic substances - When any contraband /
narcotic substance is seized and forwarded to the police or to the officer so
mentioned under Section 53, the officer so referred to in subsection (1) shall
prepare its inventory with details and the description of the seized substance like
quality, quantity, mode of packing, numbering and identifying marks and then make
an application to any Magistrate for the purposes of certifying its correctness and
for allowing to draw representative samples of such substances in the presence of
the Magistrate and to certify the correctness of the list of samples so drawn. (Para
12)
Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A (2), (3) and (4)
- The aforesaid provisions provide for the procedure and manner of seizing,
preparing the inventory of the seized material, forwarding the seized material and
getting inventory certified by the Magistrate concerned. It is further provided that
the inventory or the photographs of the seized substance and any list of the
samples in connection thereof on being certified by the Magistrate shall be
recognized as the primary evidence in connection with the offences alleged under
the NDPS Act. (Para 10)
For Petitioner(s) Mr. Narender Hooda, Sr. Adv. Mr. Rakesh Dahiya, AOR Mr. Aditya Dahiya, Adv. Mr.
Shaurya Lamba, Adv. Ms. Rashi Choudhary, Adv. Mr. Satyavan Kudalwal, Adv.
For Respondent(s) Mrs. Aishwarya Bhati, A.S.G. Mr. Apoorv Kurup, Adv. Mr. Anmol Chandan, Adv. Ms.
Vanshaja Shukla, Adv. Mr. P V Yogeswaran, Adv. Mr. Arvind Kumar Sharma, AOR
1
42
JUDGMENT
PANKAJ MITHAL, J.
1. Leave granted.
2. Heard Mr. Narendra Hooda, learned Senior counsel for the appellant and Ms.
Aishwarya Bhati, learned Additional Solicitor General for the respondent.
3. On the basis of the information received by the Intelligence Officer of Narcotics
Control Bureau1, a lorry parked near Puzhal Central Jail, Chennai, was intercepted by
NCB on 28.03.2000 early in the morning. Four persons were found in the lorry and upon
search, they were found in possession of commercial quantity i.e. 20 kgs of heroin kept in
two jute bags. The samples were drawn from each of the packets i.e. 14 big and 12 small
polythene packets kept in the two jute bags and they were seized under a seizure memo
i.e. Mahazar. All the four persons were arrested after receiving the analyst report that the
seized substance was nothing else but heroin.
4. Consequently, the case crime No.113/2000 was registered. The trial court upon
consideration of the evidence on record held all the four persons guilty under the
provisions of the Narcotic Drugs and Psychotropic Substances Act, 19852 and convicted
them to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1 lakh each, in
default of which a further imprisonment of one year was ordered.
5. All the four accused persons preferred appeal before the High Court. During the
pendency of the appeal, A-4 (Ganesh Ram) died and the appeal was dismissed as abated
against him vide order dated 15.07.2022. The High Court vide judgment and order dated
11.10.2022 dismissed the appeal holding that there is no error in the findings recorded by
the trial court and, therefore, the accused persons were directed to serve the remaining
sentence after adjusting the period of imprisonment already undergone.
6. Aggrieved by his conviction and sentencing by the trial court and its affirmation by
the High Court, A-1 alone has preferred the present appeal assailing the judgment and
order of the High Court dated 11.10.2022.
7. It may be relevant to mention here that A-1 is the owner of the contraband and the
same was being transported from Madhya Pradesh to Chennai with the help of A-2 to A-4.
A-1 had reached the place of seizure of the contraband to receive it, once it had reached
Chennai.
8. We have heard learned Senior counsel for the appellant. The main plank of his
argument is that the entire action of seizure and sampling is wholly illegal. It was done in
violation of the mandatory provisions of Section 52A (2) of the NDPS Act as the procedure
prescribed therein was not followed in drawing the samples and seizing the alleged
narcotic substance. Further, there is a serious doubt about the correctness of samples
sent for analysis as to whether they were actually the samples of the seized contraband.
9. Learned counsel for the respondent on behalf of the State submitted that the search
and seizure was based upon the prior information received by the Intelligence Officer of
NCB who has been examined as PW1. The accused persons were disclosed the identity
of the officers and after obtaining their consent in writing, the search was carried out in the
presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After
1
hereinafter referred to as “NCB”
2
hereinafter referred to as “NDPS Act”
2
43
seizure, two samples from each packet were drawn and packed separately and were
sealed. The NCB seal No.12 was affixed to it and the correct seal number was mentioned
in the Mahazar and all other documents except in the godown receipt whereby
inadvertently seal No.11 was mentioned. The Officers involved in the search, seizure and
arrest operation had duly submitted their report as referred to under Section 57 of the
NDPS Act.
10. In order to test the above submissions, it would be relevant to refer to the provisions
of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the
procedure and manner of seizing, preparing the inventory of the seized material,
forwarding the seized material and getting inventory certified by the Magistrate concerned.
It is further provided that the inventory or the photographs of the seized substance and
any list of the samples in connection thereof on being certified by the Magistrate shall be
recognized as the primary evidence in connection with the offences alleged under the
NDPS Act.
11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act
are reproduced hereinbelow:
“52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1) ---------
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or
conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station
or to the officer empowered under section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or
conveyances] containing such details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic
substances, controlled substances or conveyances] or the packing in which they are packed,
country of origin and other particulars as the officer referred to in sub-section (1) may consider
relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or
conveyances] in any proceedings under this Act and make an application, to any Magistrate for
the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or
conveyances] and certifying such
photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of
such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may
be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the
Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall
treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled
substances or conveyances] and any list of samples drawn under sub-section (2) and certified by
the Magistrate, as primary evidence in respect of such offence.”
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that
when any contraband/narcotic substance is seized and forwarded to the police or to the
officer so mentioned under Section 53, the officer so referred to in subsection (1) shall
prepare its inventory with details and the description of the seized substance like quality,
3
44
quantity, mode of packing, numbering and identifying marks and then make an application
to any Magistrate for the purposes of certifying its correctness and for allowing to draw
representative samples of such substances in the presence of the Magistrate and to certify
the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant
case, no evidence has been brought on record to the effect that the procedure prescribed
under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while
making the seizure and drawing sample such as preparing the inventory and getting it
certified by the Magistrate. No evidence has also been brought on record that the samples
were drawn in the presence of the Magistrate and the list of the samples so drawn were
certified by the Magistrate. The mere fact that the samples were drawn in the presence of
a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section
52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were
drawn by the police in the presence of the gazetted officer and not in the presence of the
Magistrate. There is no material on record to prove that the Magistrate had certified the
inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal’s3 case, the apex court while dealing with Section 52A of the NDPS
Act clearly laid down that it is manifest from the said provision that upon seizure of the
contraband, it has to be forwarded either to the officer-in-charge of the nearest police
station or to the officer empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an application to the Magistrate for
the purposes of getting its correctness certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and the list thereof on being certified
alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized
contraband were drawn in the presence of the Magistrate and that the inventory of the
seized contraband was duly certified by the Magistrate, it is apparent that the said seized
contraband and the samples drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence available, the trial as a whole
stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to
lead primary evidence vitiates the conviction and as such in our opinion, the conviction of
the appellant deserves to be set aside. The impugned judgment and order of the High
Court as well as the trial court convicting the appellant and sentencing him to rigorous
imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo
further imprisonment of one year is hereby set aside.
18. The appellant has already undergone more than 6 years of imprisonment out of 10
years awarded to him. He is on bail and has been granted exemption from surrender by
this Court. Therefore, his bail bonds, if any, stands cancelled.
19. The appeal is allowed with no order as to costs.

3
Union of India vs Mohanlal and Anr (2016) 3 SCC 379
4
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2023 SCC OnLine Del 5643
In the High Court of Delhi at New Delhi

(BEFORE JASMEET SINGH, J.)
Sarvothaman Guhan … Petitioner;

Versus
Narcotics Control Bureau … Respondent.
Bail Appln. 2879/2022 and CRL.M.A. 19629/2022
Decided on September 13, 2023, [Judgment reserved on :
26.05.2023]
Advocates who appeared in this case :
Mr. Manu Sharma, Mr. Abhir Datt, Mr. Abhyuday Sharma, Mr.
Debayan Gangopadhyay and Mr. Kartikay, Advs.
Mr. Subhash Bansal, Sr. Standing Counsel for NCB with Mr. Raghav
Bansal, Adv.
The Judgment of the Court was delivered by
JASMEET SINGH, J.:— This is an application seeking grant of regular
bail in NCB Case VIII/46/DZU/2021 dated 05.08.2021 under section 8
(c), 20 (b)(ii)(A), 20 (b)(ii)(B), 21(b), 22(c), 23 & 29 of the The
Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).
2. As per the prosecution, the facts of the case are:
A. On 04.08.2021, on the basis of information shared by NCB,
Kolkata Zonal Unit, Kolkata, the Applicant was intercepted at IGI
Airport and was questioned about the case registered at NCB,
KZU, Kolkata. During enquiry, he revealed about narcotic drugs
kept in his Travelling Bag and upon search it resulted in recovery
of 30 grams Ganja and 0.45 gram tablets of Ecstasy (MDMA),
which was seized vide Panchnama dated 04.08.2021.
B. During investigations, search at House of the applicant i.e. Flat
No. 104, Tower-D-14, Supertech Eco Village-3, Greater Noida
West, U.P. was conducted and it led to recovery of 1 kg of Ganja
and INR Rs. 15.5 lakhs which were seized vide Panchnama dated
05.08.2021.
C. The Applicant further revealed that he was procuring drugs
through Courier which used to be delivered at the address of
Accused No. 2/Rahul Mishra. The applicant also informed during
investigation the address of his friend Rahul Mishra with the
assertion of possibility of recovery of contraband. Based upon
such information, a search was conducted at House of Rahul
Mishra i.e. House No. 306, Ground Floor, Ashoka Enclave, Sector-
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35, Faridabad, Haryana and 1.05 kgs of Ganja was recovered

which was seized vide Panchnama dated 05.08.2021 in the
presence of independent witnesses.
D. The applicant during enquiry had also disclosed about his other
friend Accused No. 3/Aashray Pandey who collected another parcel
of drug from the House of Rahul Mishra and was supposed to
handover said parcel to the applicant at Ambience Mall.
Thereafter, based on said information, investigations led to
Aashray Pandey who was intercepted at Ambience Mall Gurgaon
with a parcel having the name of Rahul Mishra R/o 306, Ashok
Enclave, Sector-34, Faridabad, Haryana 121003, Ph. 9810970898.
This Parcel with slip of DTDC C10403792 had 410 grams of Ganja
which was seized from his possession vide Panchnama dated
05.08.2021.
E. The Applicant tendered his voluntary statement under section 67
NDPS Act and revealed that he is involved in narcotic drug
business and having ordered weed of superior quality through his
known contact Ms. Tareena Bhatnagar and for this he paid Rs. 6
Lakhs to Accused No. 4/Jasbir Singh. He further revealed that
money was paid to Jasbir Singh through bitcoins and he was on
Telegram App with a pseudonym “Optimas Prime”. He also
revealed that he ordered the drug parcels on the address of his
friend Rahul Mishra and further disclosed his modus operandi of
handling the said illegal business.
F. The statements of Rahul Mishra and Aashray Pandey under section
67 NDPS Act were recorded. The applicant and co-accused
persons, Rahul Mishra and Aashray Pandey were consequently
arrested on 05.08.2021.
G. Accused No. 4/Jasbir Singh appeared and tendered his voluntary
statement under section 67 NDPS Act on 01.09.2021. The
disclosure made by Jasbir Singh was regarding drug syndicate
operation through Darknet and Orient Express Group on Telegram
App and which involved Shradha Surana, Parichay Arora, Naman
Sharma, Aslam@Chicko, Raghunath Kumar, being as active part
of said illegal business of drug trafficking whereby narcotic drugs
were procured from different countries and were supplied within
India.
H. Shradha Surana tendered her voluntary statement under section
67, NDPS Act on 04.09.2021 and admitted being active in illegal
drug business through Telegram App along with Jasbir Singh and
other accused persons. Consequently, the accused Jasbir Singh
was arrested and produced on 02.09.2021 before the Special
Court. The accused Ms. Shradha Surana and accused Naman
Sharma were also arrested in this case.
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I. The revelations made by Shradha Surana and Jasbir Singh led to

recovery of contraband of varying quantities from various other
accused persons.
3. Mr. Manu Sharma, the learned counsel for the Applicant has made
the following submissions:
A. The Respondent has heavily relied upon statements of the
Applicant and co-accused persons recorded under Section 67
NDPS Act, which are inadmissible in evidence in view of the
judgment of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.
Additionally, he states that the same has not been corroborated in
any material particulars.
B. He states that there are no recoveries of commercial quantity from
the Applicant, either in person or from his residence. He submits
that without prejudice to his contentions, the first and third
recovery can be attributed to the Applicant i.e., 0.45 grams
ecstasy (notified as ‘small quantity’ under the NDPS Act), and 1kg
and 30 grams of Ganja (notified as intermediate quantity’ under
the NDPS Act), respectively. Consequently, the embargo of
Section 37 NDPS Act is not attracted qua the Applicant.
C. The learned counsel for the Applicant submits that the recovery
from the residence of Accused No. 2/Rahul Mishra cannot be
attributed to the Applicant as there is no evidence of any
communication between the Applicant and Accused No. 2/Rahul
Mishra on the date of the recovery.
D. The recovery from Accused No. 3/Aashray Pandey also cannot be
attributed to the Applicant. Though the Applicant on 05.08.2021
in his section 67 statement states that Accused No. 3 messaged
him on his mobile phone while he was in custody of the
Respondent, and asked the Applicant to come to Ambience Mall,
Gurgaon, chats pertaining to the same are not found either in the
mobile phone of the Applicant or Accused No. 3/Aashray Pandey
as per the data extraction report of their mobile phones. The same
clearly shows that no messages to this effect were exchanged
between the Applicant and Accused No. 3 on 05.08.2021.
E. He states that the Applicant cannot be said to have been in
conspiracy with other co-accused persons. The applicant is not a
member of the ‘Orient Express’ group on Telegram app, or any
other group involved in trafficking of narcotic substances. No
communication or evidence to this effect between the Applicant
and any other co-accused persons except Accused No. 2/Rahul
Mishrahas been produced before the court. In addition, no
pseudonyms have been attributed to the applicant, unlike other
co-accused persons. It is stated that the applicant has nothing to
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do with Accused Nos. 5 to 15. None of the co-accused persons

except Accused Nos. 2, 3 and 4 have named the applicant. The
Respondent has stated that illegal buying and selling of narcotics
in the syndicate occurred through bitcoins and other digital
currencies however, no material is shown that the Applicant sent
or received any bitcoins or even possessed a bitcoin wallet.
F. He places reliance on the judgment of the Hon'ble Supreme Court
in Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, (1969) 3 SCC
429 which held that the prerequisites of a general conspiracy are
existence of a common design and an integrated effort by all the
participants. He submits these ingredients were absent in the
case of the Applicant.
G. He states that there is delay in filing section 52A application. The
recovery from Applicant's travel bag on 04.08.2021 was 0.45
grams of ecstasy and 30 grams of ganja and from his residence
was 1 kg ganja on 05.08.2021. However, the application under
section 52A NDPS Act for sampling was filed by the Respondent
only on 16.08.2021, i.e., ten days thereafter. He submits that
according to the dicta of the Apex Court in Union of India v.
Mohanlal, (2016) 3 SCC 379, section 52A application by the
Respondent and sampling by the learned Magistrate under
Section 52A NDPS Act must be done at the earliest, without any
undue delay. The same has not been done at the earliest by the
Respondent in the present case, and no explanation in this regard
is furnished by the Respondent agency. The said application was
disposed of by Patiala House District Court only on 05.01.2022
i.e., after five months from the date of recovery. The samples
were thereafter sent to FSL only on 10.01.2022. Therefore, the
delay vitiates the sanctity of the recovered contraband.
H. He further submits that there is discrepancy in the quantity of the
contraband. On 05.08.2021, the recovery was 1 kg ganja from
Applicant's residence which was kept in the pulanda marked ‘R’
and was deposited at the godown of the Respondent on
05.08.2021 and kept there till 05.01.2022. At the time of
sampling under section 52A NDPS Act, the weight of the
contraband was reflected as 972 grams, instead of 1 kg. The
Respondent has not given any explanation for the said
discrepancy rendering the recovery suspect. Reliance in this
regard is placed on the judgment of the Hon'ble Supreme Court in
Rajesh Jagdamba Avasthi v. State of Goa, (2005) 9 SCC 773.
I. He states that there is statutory non-compliance of section 41 and
42 of the NDPS Act. On 04.08.2021, the Respondent received
secret information in the morning hours (presumably) as they had
located and apprehended the Applicant at 6 P.M. at the IGI
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airport. According to Section 41(1) NDPS Act, the Respondent can

approach the learned Metropolitan Magistrate seeking warrant to
carry out search and seizure operations. If there is sufficient time,
which fact can be adjudged at the stage of trial, it is imperative
that a judicial officer applies his mind to the requirement of such
a warrant. In spite of having enough time, the Respondent did not
approach the learned Magistrate under Section 41(1) NDPS Act.
J. In addition, on 05.08.2021, Applicant's residence was searched at
02.30 A.M. which was not authorized by the Respondent under
Section 41(2) NDPS Act either. The Respondent's reliance on the
panchnama dated 05.08.2021 is flawed in so far as it only states
that the said search was carried out as per the directions of
Superintendent Sh. Dhananjay Som but was not conducted in his
presence. The same can be seen from the list of witnesses to the
panchnama (filed in Bail Appln. 4175 of 2021 @ Pg. 129/TCR)
and their signatures thereof wherein presence of the
Superintendent is not reflected. He states no document was
presented to show that Respondent had obtained authorization
from a qualified officer for the search conducted at the residence.
In the absence of Respondent having any authorization under
Section 41 NDPS Act, the only provision under which it could have
conducted the search at night, is the 2nd proviso to Section 42
NDPS Act, which provides that inter alia a building can be
searched without any authorization wherein such authorization
cannot be obtained without affording opportunity for the
concealment of evidence or facility for escape of an offender.
However, even in such a case, under Section 42(2) NDPS Act, the
officer is required to record grounds of his belief satisfying the
aforesaid condition and forward the same to his immediate
superior. In the present case, the Respondent had not complied
with any of the aforesaid conditions.
K. He submits that non-compliance of Section 42 NDPS Act renders
the recovery doubtful. Reliance is also placed on the judgment of
a co-ordinate bench of this Court dated 03.02.2023 in Asif Ali v.
State of NCT of Delhi in Bail Appln. No. 647/2022 wherein the
relevant paras read as under:
“11. It is pertinent to note that the alleged search of the
applicant's car was conducted around 12 : 15 AM on
21.07.2015 and admittedly, no grounds of belief were recorded
as per the second proviso to Section 42(1) of the NDPS Act.
Since the grounds of belief were not recorded, the same could
not have been forwarded under Section 42(2) of the NDPS Act.
…
14. …Since, in the present case, the applicant has been in
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custody for more than 05 years, his case is squarely covered by

the aforesaid judgment of the Hon'ble Supreme Court. A
perusal of the medical records of the applicant dated
10.01.2023, shows that the he suffers from post pulmonary
tuberculosis sequalae with bronchiectasis causing cough,
shortness of breath and hemoptysis (on and off). Even
otherwise, this Court is of the opinion that prima facie
noncompliance of second proviso to Section 42(1) of the NDPS
Act is made out and therefore, conditions of Section 37 of the
NDPS Act are satisfied in the present case.”
L. He states that the Respondent conducted the search in an
unnatural manner rendering the recoveries unreliable as the
Applicant's bag was not searched at the IGI Airport at 6 PM on
04.08.2021 when he was apprehended where independent
witnesses were also present. The Applicant's bag was only
searched three hours later at 9 PM at the NCB office. Thereafter,
the Respondent went on to search Accused No. 2's residence at
12.30 AM on 05.08.2021 and then searched the Applicant's
residence at 2.30 AM on 05.08.2021. This conduct of the
Respondent - NCB renders the conduct as well as the recovery
doubtful.
M. The cash component of Rs. 15,52,300 recovered from Applicant's
residence has also been explained by the Applicant. It is
submitted that the Applicant's parents entered into an agreement
to sell with one Manju on 03.06.2019 for sale of property situated
at H. No. 186-G, Third Floor, Village Humayanpur, Arjun Nagar,
New Delhi - 110029 for which they received Rs. 16,30,000 in cash
between 03.06.2019 and 20.04.2020. Hence, the money was
received from sale of the house and cannot be termed proceeds
from sale of contraband.
N. Lastly, he states that the Applicant is allowed to seek bail on
grounds of parity as co-accused persons i.e., Accused No. 2/Rahul
Mishra, Accused No. 3/Aashray Panday and Accused No. 4/Jasbir
Singh, Accused No. 6/Naman Sharma and Accused No. 11/Devesh
Vasa are already released on bail.
4. Mr. Bansal, the learned senior standing counsel for the NCB has
made the following submissions:
A. He submits that the search and seizure proceedings were carried
out in accordance with section 41(2) of the NDPS Act. Upon
recovery of contraband from the bag of the Applicant and his
disclosure statement, the NCB Team under direct supervision of a
Gazetted officer, Sh. Dhananjay Som Superintendent, went to the
residence of Accused No. 2/Rahul Mishra at Faridabad where
search and seizure took place. The same team then proceeded
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under the supervision of the said Superintendent to the residence

of the Applicant where House Search was conducted and led to
recovery of contraband which was seized in the presence of two
independent witnesses who were Security Personnel of the
Housing Society.
B. It is submitted that the search proceedings at Faridabad and
Greater Noida have been carried-out in continuation and under
direct supervision of the Superintendent, therefore, there is no
violation of Section 42 NDPS Act. Further, on 06.08.2021, in
compliance of section 57 NDPS Act, the I.O. had placed the
Seizure Report with complete details of arrest and seizure to his
immediate official superior. Hence, there is no non-compliance of
section 42 NDPS Act.
C. The factum of association between the applicant and Accused No.
2/Rahul Mishra is also corroborated from the statement of the
applicant who stated he visited Goa with Rahul Mishra in last
week of July, 2021 and had returned on 04.08.2021. The
contention of the applicant questioning his connection and links
with co-accused persons prior to recovery of contraband stands
dislodged by the Applicant's own disclosure which led to recovery
of contraband from the house of Accused No. 2/Rahul Mishra.
D. He states that the contention regarding delay in filing application
under section 52-A, NDPS Act is misconceived. The seizure was
effected on 05.08.2021 and the seizure report was submitted on
06.08.2021. The Application under section 52-A, NDPS Act was
filed by the concerned I.O. on 16.08.2021. Admittedly, in-
between, there were holidays due to weekends and 15th August
(Independence Day). The Application had been filed without any
undue delay and no prejudice has been caused to the accused
persons. Moreover, the validation procedure under section 52-A
NDPS Act is just a matter of trial and the same can only be
adjudged after examination of witnesses.
E. The applicant acted-in criminal conspiracy and indulged in illicit
trafficking of contraband thereby liable for offence in violation of
the NDPS Act. The Applicant led to Accused No. 4/Jasbir Singh
and other accused persons and is the evidence of a criminal
conspiracy between the accused persons and thus, falls within the
purview of Section 29 NDPS Act thereby, holding the accused
persons jointly liable. As per the Complaint, the recoveries made
from the Applicant leading to further recoveries and discovery of
fact of involvement of other co-accused persons also lends
credence to the presumption under section 35 and 54 of NDPS Act
regarding involvement of the Applicant in trafficking of
commercial quantity of contraband. Therefore, the rigors of
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section 37 NDPS Act are applicable qua the Applicant.

F. The reliance upon the Hon'ble Supreme Court's judgment of Tofan
Singh (supra) will not come to the aid of the Applicant from his
culpability in the present case. Though confessional statements
under section 67 NDPS Act may not be admissible but facts
discovered in pursuance to the same would be admissible under
section 27 of Indian Evidence Act, 1872 (“IEA”).
G. The reliance of the Applicant seeking bail on grounds of parity in
context to grant of bail to co-accused persons i.e. Naman Sharma,
Aashray Pandey, Devesh Vasa is misplaced. The grant of bail to
Aashray Pandey was premised on the basis that he was
apprehended when he was on his way to deliver the parcel
containing 410 grams of Ganja to Rahul Mishra and from the
statements of co-accused persons also it came to light that
Aashray Pandey was a consumer of Ganja and hence, had a
limited role leading to grant of bail. This accused was found to be
working on instructions of the present applicant. The accused,
Naman Sharma had been granted bail on the basis that the said
accused was at best consuming drugs which he used to buy from
the sellers in the group. The accused, Devesh Vasa was also found
to have been a consumer and placed an order for LSD Drugs for
his personal consumption and therefore, considering the limited
role attributed to him, the said accused was granted bail. It is
submitted that the role of present Applicant is more serious as he
was operating as a dealer and a drug trafficker and selling drugs
to other persons. It is submitted that the present Applicant is
booked in 4 cases at Kolkata Zone (i.e. KZU/31, 35, 40, 43 of
2021) and another case at Delhi Zone (i.e. VIII/53/DZU/2021)
registered under sections 8(c), 20, 29 of NDPS Act. The Applicant
is involved in a number of offences under the NDPS Act being a
habitual criminal of illegal drug trafficking.
H. It is submitted that at the stage of bail prima facie evidence
needs to be established and the same has been done as prima
facie link between the Applicant and other co-accused persons is
made out regarding their involvement in illicit drug trafficking.
I. Reliance is placed on Sambhav Parakh v. State of Chhattisgarh,
2021 SCC OnLine Chh 469 wherein the Court observed that when
commercial quantity of illicit psychotropic substance is recovered
from one accused, in view of section 29 of the NDPS Act, other co-
accused from whom no recovery has been made are to satisfy the
rigors of section 37 NDPS Act as they are presumed to be linked
in the entire operation. The quantity of contraband recovered in
the instant case is of commercial quantity from other co-accused
persons and as such the rigors of Section 37 of the NDPS Act are
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attracted qua the Applicant. The relevant para of Sambhav Parakh

(supra) reads as under:
“24. It is also to be seen that statements of two accused
person have been recorded under Section 67 of the Act and
they have named other accused persons as part of the entire
operation. It is also to be kept in mind that the prosecution has
filed the charge sheet for criminal conspiracy under Section 29
of the Act. Thus, all the accused persons being part of a bigger
drug cartel/mafia their act cannot be examined in isolation and
on stand alone basis, but the whole case has to be treated as
one of peddling of commercial quantity of illicit contraband.”
J. The learned Senior Standing Counsel further states that the role of
one accused cannot be segregated from other co-accused as all
the accused belong to the same group within a larger drug
network. Reliance is placed on Union of India through NCB
Lucknow v. Md. Nawaz Khan, Cri. Appeal No. 1043/2021 wherein
the Apex Court held:
“25. In line with the decision of this Court in Rattan Mallik
(supra), we are of the view that a finding of the absence of
possession of the contraband on the person of the respondent
by the High Court in the impugned order does not absolve it of
the level of scrutiny required under Section 37(1)(b)(ii) of the
NDPS Act.”
K. Lastly, it is submitted that the Applicant was dealing in
commercial quantity of contraband and hence, as per section 37
(1)(b)(ii) NDPS Act, there are no reasonable grounds for believing
that the Applicant is prima-facie not guilty of said offence. In view
of the above, the bail application of the Applicant is vehemently
opposed.
ANALYSIS
5. I have heard learned counsel for the parties.
I. No Recovery of Commercial Quantity of Contraband
6. Even assuming the best case of the Respondent - NCB, no
commercial quantity of contraband has been recovered from the
Applicant, either in person or from his residence. The Applicant was
apprehended at the IGI Airport on 04.08.2021 where 0.45 grams
ecstasy and 30 grams Ganja was recovered from him. Thereafter, on
05.08.2021, 1 kg ganja and cash amounting to Rs. 15,52,300 was
recovered from the Applicant's residence. Thus, the recovery
attributable to the Applicant is 0.45 grams ecstasy (small quantity) and
1 kg and 30 grams Ganja (intermediate quantity).
7. The recovery from Accused No. 2/Rahul Mishra (1.050 kg of
ganja) and Accused No. 3/Aashray Panday (410 grams of ganja) is not
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attributable to the Applicant. The Applicant named Accused No.

2/Rahul Mishra as well as Accused No. 3/Aashray Panday in his section
67 statement however, the recoveries from them cannot be attributed
to the Applicant since there is no material or any communication
between the Applicant and Accused No. 2/Rahul Mishra on the date of
the recovery.
8. The Applicant on 05.08.2021 in his section 67 statement said that
Accused No. 3/Aashray Pandey messaged the Applicant while he was in
the custody of the Respondent, asking him to come to Ambience Mall,
Gurgaon to collect 410 grams of ganja. However, no chats/messages
pertaining to the same have been found in either of their mobile as per
the mobile phone data extraction report of the Applicant as well as
Accused No. 3's mobile phones. The same shows that no messages to
this effect were exchanged between the Applicant and Accused No. 3
on 05.08.2021. Thus, recovery from Accused No. 3 is not attributable to
the Applicant.
9. Even assuming NCB's argument that recoveries from Accused No.
2/Rahul Mishra (1.050 kg of ganja) and Accused No. 3/Aashray Panday
(410 grams of ganja) are attributable to the Applicant, then also the
quantity of contraband recovered does not cross the threshold of
commercial quantity in order to invoke the jurisdiction of section 37
NDPS Act.
10. Since there is no recovery of commercial quantity of contraband
from the Applicant, the rigors of section 37 NDPS Act are not applicable
to the Applicant. In addition, the applicant in the complaint has not
been arraigned under section 19, 24, 27-A of the NDPS Act.
11. The Respondent - NCB states that the Applicant and co-accused
persons are inextricably linked and cannot be segregated. NCB has
contended that according to the dicta in Sambhav Parakh (supra), the
recoveries from co-accused persons is attributable to the Applicant by
virtue of section 29 NDPS Act as the Applicant is intrinsically linked to
the co-accused persons.
12. In my view, the contention of the NCB in this regard is
misplaced in so far as the Respondent - NCB has not established the
offence of criminal conspiracy under section 29 NDPS Act qua the
Applicant.
13. The judgment of Sambhav Parakh (supra) is distinguishable in
so far as apart from section 67 statements of three co-accused persons,
there is nothing linking the Applicant with the other co-accused persons
to establish a common design or integrated effort. I have dealt with the
same under the heading ‘Mis-joinder of Charges’ in subsequent
paragraphs.
14. Reliance on Md. Nawaz (supra) is misplaced in so far as the
applicant therein was apprehended in the car with the contraband.
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However, in the case at hand, all co-accused are separate and have
isolated instances of recovery therefore, the level of scrutiny under
section 37 NDPS Act is not attracted qua the Applicant.
15. As regards non-compliance of statutory provisions:—
II. Delay in filing Section 52A NDPS Act Application
16. The learned counsel for the Applicant states that there is an
undue delay of 10 days in filing the application under section 52-A
NDPS Act as the recovery from the travel bag of the Applicant was
made on 04.08.2021 and from his residence on 05.08.2021 but the
application under section 52-A NDPS Act was only filed on 16.08.2021.
17. In the present case, the Respondent NCB has furnished reasons
for the delay in sending the sample to FSL. As per the Respondent, the
delay was caused primarily due to non-working days on account of
weekends and Independence Day. The seizure report was prepared on
06.08.2021 itself, however, the reasons furnished by the Respondent
NCB for the said delay are not acceptable. Assuming non-working days
on account of weekend and Independence Day caused a hindrance in
submitting the application under section 52-A NDPS Act, even then the
NCB took more than a week to file the said application which is merely
a clerical formality that should not take so much time. The delay caused
is a procedural lapse on the part of the Respondent agency, which
renders the sample, suspect.
18. The contraband was seized on 05.08.2021 and the seizure report
was filed on 16.08.2021. Merely making bald averments that it was a
weekend and Independence Day will not suffice. According to the
calendar for the year of 2021, 8th and 15th of August 2021, being two
Sundays, were the only holidays, rest were working days. As valuable
rights of the Applicant are at stake, the prosecution must show alacrity.
NCB is a department dedicated to narcotics and once a full department
is only dealing with narcotics, it does not lie upon the Respondent -
NCB to say that 10 days is a reasonable time.
19. I have already held in BAIL APPLN. 253/2023 Kashif v. NCB
(2023 : DHC : 3438) that reasonable time should be in the proximity of
72 hours. The relevant paras in Kashif (supra) read as under:
“23. The reason for strict time frame and collection of sample has
been elucidated by a coordinate bench of this court in the judgment
of Rishi Dev @ Onkar Singh v. State (2008 : DHC : 1513) in CRL.A.
No. 757/2000 decided on 01.05.2008 wherein it was observed as
under:
“8.…The above passage shows that there is a time limit of
72hours stipulated by the Narcotics Control Bureau for a seized
sample to be deposited with the Chemical Examiner for testing.
This rule is salutary because any attempt at tampering with the
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sample recovered from the accused can have fatal consequences

to the case of the prosecution. Strict compliance has to be
insisted upon in such an event.
… …
19. This Court is unable to agree with the approach adopted by
the trial court, especially its observations highlighted above. The
record of the case should contain entry in writing about the
sample being sent for testing within the time specified by the
Narcotic Control Bureau. A strict compliance of this requirement
has to be insisted upon. The reason is this. The sample that is
kept in a police malkhana, under the seals of the police officers
themselves, is still definitely under the control of those police
officers. There is every possibility that the samples could be
tampered and again re-sealed by the very same officers by again
affixing their seals. It is to prevent this from happening that
earlier the sample is sent for testing to the CFSL the better.”
(emphasis supplied)
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.
….
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
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.”
20. Hence, on this reason alone, the applicant is entitled to bail.
Nevertheless, there are other reasons which persuade me to allow the
present application.
III. Discrepancy in Quantity of Contraband Recovered
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21. There is a discrepancy in the quantity of the contraband

recovered from the Applicant on 05.08.2021 and the quantity reflected
at the time of sampling under Section 52A NDPS Act.
22. As per the panchnama, on 05.08.2021, Ganja weighing 1 kg was
recovered from the Applicant's residence. The said contraband was kept
in a Pulinda marked ‘R’ and deposited at the godown of Respondent -
NCB on 05.08.2021 and was kept there till 05.01.2022. At the time of
sampling of the contraband substance for the purpose of section 52A
NDPS Act, the weight of the Ganja was reflected as 972 grams, instead
of 1 kg.
23. The Hon'ble Supreme Court in Rajesh Jagdamba Avasthi (supra)
has observed:
“12. However, there appears to be substance in the other
submissions urged on behalf of the appellant, namely, that the
weight of the substance sealed in two envelopes was found to be
different from the weight of the substance received by the laboratory
as deposed to by PW 1. It is not disputed that from the shoe on the
right foot 100 gm of charas was recovered, which was sealed in
envelope A. According to PW 1, the Junior Scientific Officer, when
that envelope was opened and the substance weighed it was found
to be 98.16 gm. Similarly, from the shoe on the left foot 115 gm of
charas was recovered which was packed and sealed in envelope B.
But only 82.54 gm of the substance was found in envelope B when
the same was opened by PW 1. A similar submission was urged
before the High Court and the High Court also found that this
discrepancy could not be explained by the prosecution. The High
Court observed that there was no doubt that envelope B which was
said to contain 115 gm of charas was found to contain only 82.54
gm of charas and this could not be considered to be a minor
discrepancy. However, the High Court was of the view that even if
this sample contained in envelope B was not considered against the
appellant on account of discrepancy in the weight, since there was
no material discrepancy in the weight of the charas found in the
other envelope A, the case against the appellant stood established
on the basis of the charas recovered, packed and sealed in envelope
A.
13. It, therefore, concluded that the appellant could be held guilty
for unauthorised possession of 98.16 gm of charas found in envelope
A, if not for the total quantity of 180.70 gm as charged.
14. We do not find it possible to uphold this finding of the High
Court. The appellant was charged of having been found in possession
of charas weighing 180.70 gm. The charas recovered from him was
packed and sealed in two envelopes. When the said envelopes were
opened in the laboratory by the Junior Scientific Officer, PW 1, he
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found the quantity to be different. While in one envelope the

difference was only minimal, in the other the difference in weight
was significant. The High Court itself found that it could not be
described as a mere minor discrepancy. Learned counsel rightly
submitted before us that the High Court was not justified in
upholding the conviction of the appellant on the basis of what was
recovered only from envelope A ignoring the quantity of charas found
in envelope B. This is because there was only one search and
seizure, and whatever was recovered from the appellant was packed
in two envelopes. The credibility of the recovery proceeding is
considerably eroded if it is found that the quantity actually found by
PW 1 was less than the quantity sealed and sent to him. As he
rightly emphasised, the question was not how much was seized, but
whether there was an actual seizure, and whether what was seized
was really sent for chemical analysis to PW 1. The prosecution has
not been able to explain this discrepancy and, therefore, it renders
the case of the prosecution doubtful.”
24. This Court has categorically already held in Kadir v. State Govt.
of NCT of Delhi in BAIL APPLN. 553/2023:
“8. The judgment of Mohd. Ramzan (supra) is squarely applicable
to the facts of the present case. The Coordinate Bench in Mohd.
Ramzan (supra) has relied upon the judgment of the Hon'ble
Supreme Court in Rajesh Jagdamba Avasthi v. State of Goa 2005 (1)
Apex Criminal Judgment 240 and has held that the discrepancy in
the weight of the samples seized under Section 52A of NDPS Act and
the report of the FSL erodes the credibility of the recovery
proceedings.
9. I am of the view that the discrepancy in the weight of the
sample goes to the root of the matter and questions the actual
seizure itself. The prosecution has not been able to explain this
discrepancy at this stage. It erodes the credibility of the recovery
proceedings.”
25. The Respondent - NCB has not furnished any explanation with
regards to the discrepancy and the same must be construed in favor of
the Applicant in the present case. Such discrepancy in quantity of
recovery of the contraband at the time of seizure and sampling vitiates
the sanctity of the recovery proceedings and renders the recovery
doubtful.
IV. Non-Compliance of Section 41 And 42 NDPS Act
26. The next procedural deviation is with regard to non-compliance
of section 41 and 42 NDPS Act.
27. Section 41(1) NDPS Act reads as under:
“41. Power to issue warrant and authorization -
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(1) A Metropolitan Magistrate or a Magistrate of the first class or

any Magistrate of the second class specially empowered by the
State Government in this behalf, may issue a warrant for the
arrest of any person whom he has reason to believe to have
committed any offence punishable under this Act, or for the
search, whether by day or by night, of any building,
conveyance or place in which he has reason to believe any
narcotic drug or psychotropic substance or controlled substance
in respect of which an offence punishable under this Act has
been committed or any document or other article which may
furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed….
(2) Any such officer of gazetted rank of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including the para-
military forces or the armed forces as is empowered in this
behalf by general or special order by the Central Government,
or any such officer of the revenue, drugs control, excise, police
or any other department of a State Government as is
empowered in this behalf by general or special order of the
State Government if he has reason to believe from personal
knowledge or information given by any person and taken in
writing that any person has committed an offence punishable
under this Act or that any narcotic drug or psychotropic
substance or controlled substance in respect of which any
offence under this Act has been committed or any document or
other article which may furnish evidence of the commission of
such offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing
or forfeiture under Chapter VA of this Act is kept or concealed
in any building, conveyance or place, may authorise any officer
subordinate to him but superior in rank to a peon, sepoy or a
constable to arrest such a person or search a building,
conveyance or place whether by day or by night or himself
arrest such a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or search
or the officer who is so authorised under sub-section (2) shall
have all the powers of an officer acting under section 42.]
28. Section 42 of the NDPS Act reads as under:
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“42. Power of entry, search, seizure and arrest without

warrant or authorisation.— (1) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intellegence or any other
department of the Central Government including para-military forces
or armed forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer (being an
officer superior in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable under
this Act has been committed or any document or other article which
may furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property which
is liable for seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building, conveyance or enclosed
place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of
this Act; and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under this Act:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances granted under this Act
or any rule or order made thereunder, such power shall be
exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to
believe that a search warrant or authorisation cannot be
obtained without affording opportunity for the
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concealment of evidence or facility for the escape of an

offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to his
immediate official superior.”
29. Section 41(1) makes it clear that that if there is sufficient time,
the judicial officer has to apply his mind to the requirement of a
warrant. The facts of the present case seem to suggest that the
Respondent had sufficient time to approach the Magistrate for issuance
of warrant of arrest. Despite the same, the Respondent - NCB did not
approach the learned Magistrate under Section 41(1) NDPS Act.
30. There is nothing on record to show that the Respondent - NCB
received secret information in late afternoon or evening. The Applicant
was apprehended at IGI Airport at 6 PM on 04.08.2021. As per Section
41(1) NDPS Act, the Respondent - NCB was supposed to approach the
learned Metropolitan Magistrate seeking warrant to conduct search and
seizure operations. The same was not done by the Respondent - NCB
despite having sufficient time. Additionally, no document has been
provided to show that authorization was obtained from a qualified
officer for search conducted at the Applicant's residence.
31. Furthermore, there is non-compliance of section 41(2) NDPS Act
as the search of the Applicant's residence on 05.08.2021 at 2.30 AM
was not authorized by the Respondent - NCB under section 41(1) NDPS
Act. The panchnama dated 05.08.2021 records that the search was
conducted under the directions of Superintendent Sh. Dhananjay Som
but was not conducted in his presence. The same is corroborated by the
list of witnesses to the panchnama which does not include the
signature of the Superintendent (filed in Bail Appln. 4175 of 2021 @
Pg. 129/TCR).
32. In view of non-compliance of Section 41 NDPS Act, the
Respondent - NCB was supposed to conduct the search at night in
terms of the 2nd proviso to Section 42 NDPS Act which states that a
building can be searched sans authorization so as to prevent the
offender from escaping or affording an opportunity for concealment of
evidence. The same can be done by the officer after recording grounds
of his belief satisfying the aforesaid condition and forwarding the same
to his immediate superior officer under section 42(2) NDPS Act. In the
present case, the same has not been carried out by the concerned
officer and hence, is a violation of section 42(2) NDPS Act.
33. Support is sought from the judgment of the Apex Court viz.,
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Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513

wherein it was observed as under:
“17. A two-Judge Bench of this Court has considered the said
question along with other questions in State of Punjab v. Balbir
Singh [(1994) 3 SCC 299 : 1994 SCC (Cri) 634]. In para 25 of that
judgment the conclusions were laid down, of which what is relevant
for this case regarding Section 42(1) is the following : (SCC p. 321,
para 25)
“25. (2-C) Under Section 42(1) the empowered officer if has a
prior information given by any person, that should necessarily be
taken down in writing. But if he has reason to believe from
personal knowledge that offences under Chapter IV have been
committed or materials which may furnish evidence of
commission of such offences are concealed in any building etc. he
may carry out the arrest or search without a warrant between
sunrise and sunset and this provision does not mandate that he
should record his reasons of belief. But under the proviso to
Section 42(1) if such officer has to carry out such search between
sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case and
vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under proviso to
Section 42(1) should forthwith send a copy thereof to his immediate
official superior. If there is total non-compliance of this provision the
same affects the prosecution case. To that extent it is mandatory.
But if there is delay whether it was undue or whether the same has
been explained or not, will be a question of fact in each case.”
… …
23. In this case non-recording of the vital information collected by
the police at the first instance can be counted as a circumstance in
favour of the appellant. Next is that even the information which PW 2
recollected from memory is capable of helping the accused because
it indicates that the real culprits would have utilised the services of
an autorickshaw driver to transport the gunny bags and it is not
necessary that the autorickshaw driver should have been told in
advance that the gunny bags contained such offensive substance.
The possibility is just the other way round that the said culprits
would not have disclosed that information to the autorickshaw driver
unless it is shown that he had entered into a criminal conspiracy
with the other main culprits to transport the contraband. The
prosecution did not adduce any evidence to show any such
connivance between the appellant and the real culprits. There is
63
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nothing even to suggest that those culprits and the appellant were
close to each other, or even known to each other earlier. Yet another
circumstance discernible from the evidence in this case is that the
police had actually arrayed two other persons as the real culprits and
made all endeavour to arrest them, but they absconded themselves
and escaped from the reach of the police.”
34. Hence, I am of the view that non-compliance of section 41 and
42 NDPS Act renders the recovery doubtful.
V. Unnatural Conduct
35. The recoveries are also rendered suspect in view of the unnatural
conduct of the Respondent - NCB. The Applicant was apprehended at 6
PM on 04.08.2021 at IGI Airport. However, his bag was only searched
after 3 hours at 9 PM at the NCB Office and not at the airport where
independent witnesses were available aplenty. This casts a doubt on
the recovery of 04.08.2021. Thereafter, the Respondent - NCB
proceeded to search the residence of Accused No. 2/Rahul Mishra at
12.30 AM on 05.08.2021 and then went on to search the Applicant's
residence at 2.30 AM on 05.08.2021. No reasons have been given by
the Respondent - NCB for the said conduct on their behalf. Such
unnatural conduct of the Respondent - NCB renders the recovery
suspect and doubtful.
36. There is no explanation given by the Respondent - NCB as to
why the bag of the Applicant was not searched at the airport in the
presence of independent witness but was searched at the NCB office.
Further, no reason has been provided by the Respondent - NCB as to
why the applicant's residence was searched at 2.30 AM after searching
the house of co-accused, Rahul Mishra.
37. If an accused is apprehended in a public place, suspected of
carrying contraband, the endeavour of the prosecuting agency in such a
case should always be to search the accused for contraband at that
public place itself where large numbers of independent witnesses are
available. This lends considerable credibility to the search and seizure
proceedings and inspires confidence regarding transparency of the said
process.
38. In the present case, admittedly, the applicant was apprehended
and arrested by the Respondent - NCB (who had secret information qua
the Applicant, suspecting him of carrying contraband) at the IGI
Airport. The normal and correct course of conduct expected of a
prosecuting agency is to have searched the Applicant at the IGI Airport
itself and seize the sample in the presence of independent witnesses.
However, the Respondent - NCB has deviated from this course of
conduct that casts a doubt on the recoveries of 04.08.2021 and
05.08.2021.
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VI. Mis-joinder of Charges

39. The Applicant was not involved in general conspiracy with other
co-accused persons. There is nothing on record to show that the
Applicant was a member of the Telegram group ‘Orient Express’ or any
other group where buying and selling of narcotic substances was taking
place. No pseudonym has been assigned belonging to the Applicant in
the Telegram group ‘Orient Express’. In fact, no connection between
the Applicant and other co-accused persons has been alleged except
with Accused No. 2, 3 and 4 who named the Applicant in their
respective section 67 statements. The co-accused persons i.e., Accused
No. 2, 3 and 4 have already been granted bail.
40. There is no communication, or any prima-facie material
presented before this Court linking the Applicant and other co-accused
persons except Accused No. 2/Rahul Mishra.
41. The Respondent - NCB has alleged that trafficking of narcotic
substances in the syndicate occurred through bitcoins and other digital
currencies but there is no evidence produced before this Court showing
that the Applicant sent or received any bitcoins or had a bitcoin wallet.
Therefore, in view of the same, the Applicant cannot be said to have
been involved in a general conspiracy of drug syndicate with other co-
accused persons.
42. The Applicant neither had any knowledge of the drug syndicate
being operated by co-accused persons nor had any connection with the
co-accused persons involved in the drug syndicate. Hence, the
allegation of the Respondent - NCB to state that the Applicant was part
of the general conspiracy with co-accused persons is misplaced.
43. Reliance in this regard is placed on the Hon'ble Supreme Court's
judgment in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600
wherein it was observed as under:
“100. Lord Bridge in R. v. Anderson [[1985] 2 All ER 961 : [1986]
A.C. 27 : [1985] 3 WLR 268 (HL)] aptly said that the evidence from
which a jury may infer a criminal conspiracy is almost invariably to
be found in the conduct of the parties. In Daniel Youth v. R. [AIR
1945 PC 140 : 1945 All LJ 269] the Privy Council warned that in a
joint trial care must be taken to separate the admissible evidence
against each accused and the judicial mind should not be allowed to
be influenced by evidence admissible only against others. “A co-
defendant in a conspiracy trial”, observed Jackson, J. (US p. 454),
“occupies an uneasy seat” and
“it is difficult for the individual to make his own case stand on
its own merits in the minds of jurors who are ready to believe that
birds of a feather are flocked together”.
(Vide Alvin Krulewitch v. United States of America [93 L.Ed.
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790 : 336 US 440 (1949)].)

In Nalini case [(1999) 5 SCC 253 : 1999 SCC (Cri) 691] Wadhwa,
J. pointed out, at p. 517 of SCC, the need to guard against prejudice
being caused to the accused on account of joint trial with other
conspirators. The learned Judge observed that : (SCC p. 517, para
583)
“There is always difficulty in tracing the precise contribution of
each member of the conspiracy but then there has to be cogent
and convincing evidence against each one of the accused charged
with the offence of conspiracy.”
The pertinent observation of Judge Hand in U.S. v. Falcone [109 F
2d 579 (2nd Cir, 1940)] was referred to : (SCC p. 511, para 572)
“The distinction is especially important today when so many
prosecutors seek to sweep within the dragnet of conspiracy all
those who have been associated in any degree whatever with the
main offenders.”
At para 518, Wadhwa, J., pointed out that the criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. The learned Judge then set
out the legal position regarding the criminal liability of the persons
accused of the conspiracy as follows : (SCC p. 518, para 583)
“One who commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly consents to the object of
a conspiracy and goes along with other conspirators, actually
standing by while the others put the conspiracy into effect, is
guilty though he intends to take no active part in the crime.”
44. Further, the Apex court in Mohd. Husain Umar Kochra (supra)
held that the pre-requisites of conspiracy require a common design and
integrated effort by all members, which is not the case with the
Applicant here. The relevant paras read as under:
“15. As to the second question the contention was that the
evidence disclosed a number of separate conspiracies and that the
charge of general conspiracy was not proved. Criminal conspiracy as
defined in Section 120-A of the IPC is an agreement by two or more
persons to do or cause to be done an illegal act or an act which is not
done by illegal means. The agreement is the gist of the offence. In
order to constitute a single general conspiracy there must be a
common design and a common intention of all to work in furtherance
of the common design. Each conspirator plays his separate part in
one integrated and united effort to achieve the common purpose.
Each one is aware that he has a part to play in a general conspiracy
though he may not know all its secrets or the means by which the
common purpose is to be accomplished. The evil scheme may be
66
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promoted by a few, some may drop out and some may join at a later
stage, but the conspiracy continues until it is broken up. The
conspiracy may develop in successive stages. There may be a
general plan to accomplish the common design by such means as
may from time to time be found expedient. New techniques may be
invented and new means may be devised for advancement of the
common plan. A general conspiracy must be distinguished from a
number of separate conspiracies having a similar general purpose.
Where different groups of persons cooperate towards their separate
ends without any privity with each other, each combination
constitutes a separate conspiracy. The common intention of the
conspirators then is to work for the furtherance of the common
design of his group only. The cases illustrate the distinction between
a single general conspiracy and a number of unrelated conspiracies.
In S.K. Khetwani v. State of Maharashtra [(1967) 1 SCR 595] and S.
Swaminathan v. State of Madras [AIR 1957 SC 340] the Court found
a single general conspiracy while in R. v. Griffiths [[1962] 2 All ER
448] the Court found a number of unrelated, separate, conspiracies.”
45. A perusal of above shows that there was no common design or
integrated effort by the Applicant in conspiracy with other co-accused
persons.
VII. Explanation for recovery of Cash from Applicant's residence
46. On 05.08.2021, an amount of Rs. 15,52,300 in cash was
recovered from the Applicant's residence. The Respondent - NCB has
alleged that the said amount of money recovered in cash forms part of
proceeds of sale of contraband. The Applicant has furnished an
explanation for the money recovered from his residence. The learned
counsel for the Applicant states that the Applicant's parents entered
into an agreement to sell for property situated at H. No. 186-G, Third
Floor, Village Humayanpur, Arjun Nagar, New Delhi - 110029 with one
Ms. Manju on 03.06.2019 and as payment of the said property, the
Applicant's parents received a total sum of Rs. 16,30,000 in cash from
the buyer between 03.06.2019 and 20.04.2020.
47. The Agreement to Sell and receipts in this regard have been
annexed in the bail application.
48. It is also observed that apart from the Applicant's section 67
NDPS Act statement which is inadmissible in view of Tofan Singh
(supra), the Respondent - NCB has not produced any other material to
show that the money recovered in cash from the Applicant's residence
was proceeds from sale of contraband.
VIII. Grounds of Parity
49. The co-accused persons who named the Applicant namely
Accused No. 2/Rahul Mishra, Accused No. 3/Aashray Panday and
Accused No. 4/Jasbir Singh, Accused No. 6/Naman Sharma and
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Accused No. 11/Devesh Vasa have been granted bail.

50. Accused No. 3/Aashray Panday was found to be in possession 0f
410 grams of Ganja (small quantity) which was recovered from him
when he was on his way to deliver the parcel at Ambience Mall,
Gurgaon. The allegation against Accused No. 4/Jasbir Singh was that he
was involved in drug business through ‘dark net’ and ordered drugs
from USA and Canada for the purposes of reselling them in India.
Accused No. 6/Naman Sharma was allegedly an admin of the Telegram
group ‘Orient Express’ and has been granted bail. Additionally, Accused
No. 11/Devesh Vasa was found to be in possession of 05 blots of LSD
weighing 0.05 grams (intermediate quantity).
51. In conclusion, there is no recovery of commercial quantity of
contraband from the Applicant thus, the rigors of section 37 NDPS Act
are not attracted in the present case. Additionally, the Applicant was
not part of the conspiracy with other co-accused persons as no
pseudonym or chats have been attributed to him with respect to the
‘Orient Express’ telegram group. Further, the recovery from the
Applicant is doubtful in view of the discrepancy regarding the weight of
contraband which was 1 kg at the time of seizure and 972 grams at the
time of filing application under section 52A NDPS Act and also due to
delay in filing section 52A NDPS Act application. The sample collection
is also irregular, and no reasons have been given for not searching the
bag of the Applicant at the airport. The non-compliance of section 41
and 42 NDPS Act also raises suspicion with regards to the recovery
process and seized contraband. Further, the cash recovered from the
residence of Applicant has been explained.
52. Additionally, the statement of the Applicant under section 67
NDPS Act does not lead to discovery of facts (as per section 27 of IEA).
Section 27 of the IEA reads as under:
“Section 27. How much of information received from
accused, may be proved -
Provided that, when any fact is deposed to as discovered
inconsequence of information received from a person accused of
any offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.”
53. The statements recorded under section 67 NDPS Act are
inadmissible being hit by section 25 IEA and the only way to make
such statements admissible is by way of section 27 IEA which creates
an exception and allows such part of a confessional statement, being
information leading to discovery of some fact not in the knowledge of
the Police to be proved.
54. Section 27 IEA will not be applicable qua the Applicant as in the
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present case, there is no discovery of ‘fact’ based on the section 67

statement of the Applicant. At best, the Applicant in his section 67
statement has merely identified co-accused, Rahul Mishra and Aashray
Pandey. Based on Rahul Mishra and Aashray Pandey's respective
section 67 statement, the contraband has been recovered from them.
Therefore, there is no discovery of ‘fact’ within the purview of section
27 IEA as the Applicant has merely named and led the Respondent -
NCB to the aforesaid co-accused persons.
55. All earlier cases against the Applicant are based on recoveries
involving small quantities. The Applicant has stated that he is a
consumer and not a seller. As per the Applicant, he was also arraigned
in case arising out of NCB Case No. VIII/53/DZU/2021, however, he
was discharged in the said case by the Ld. Special Judge (NDPS),
Patiala House District Court, New Delhi vide Order dated 31.03.2023
passed in S.C. No. 105/2022.
56. The complaint in the present case has been filed on 31.01.2022,
and the Applicant is not required for further investigation. The case is
currently at the stage of arguments on charge and the evidence is likely
to take a considerably long time. Further, the Applicant was arrested on
05.08.2021 and has been in custody for more than two years, in a case
involving intermediate quantity. In my view, the triple test i.e., a) flight
risk; b) tampering with evidence and c) influencing of witnesses can be
taken care of by imposing stringent bail conditions.
57. For the aforesaid reasons, the application is allowed and the
Applicant is granted bail in NCB Case VIII/46/DZU/2021 on the
following terms and conditions:
i. The Applicant shall furnish a personal bond and a surety bond in
the sum of Rs. 50,000/- each, to the satisfaction of the Trial
Court;
ii. The Applicant shall appear before the Court as and when the
matter is taken up for hearing;
iii. The Applicant shall provide his mobile number to the
Investigating Officer (IO) concerned, which shall be kept in
working condition at all times. The Applicant shall not switch off,
or change the same without prior intimation to the I.O.
concerned, during the period of bail;
iv. The Applicant shall join investigation as and when called by the
I.O. concerned;
v. In case the Applicant changes his address, he will inform the I.O.
concerned and this Court also;
vi. The Applicant shall not leave the country during the bail period
and surrender his passport, if any, at the time of release before
the Trial Court;
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vii. The Applicant shall not indulge in any criminal activity during the
bail period;
viii. The Applicant shall not communicate with or come into contact
with any of the prosecution witnesses or tamper with the evidence
of the case.
58. The observations made hereinabove are only for the purposes of
the deciding the present bail application. They shall not have any
bearing in deciding the merits of the case.
59. The application is allowed and disposed of in the aforesaid
terms.
———
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70
SURYA KANT; J., DIPANKAR DATTA; J.
Special Leave to Appeal (Crl.) No(s).4169/2023; 13-07-2023
RABI PRAKASH versus THE STATE OF ODISHA
Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - In case of
prolonged incarceration, conditional liberty will override the statutory embargo
under Section 37 of the Act. Prolonged incarceration is against fundamental right
guaranteed under Article 21, ie, protection of life and personal liberty. (Para 4)
(Arising out of impugned final judgment and order dated 11-11-2022 in BLAPL No.11613/2021 passed by
the High Court of Orissa at Cuttack)
For Petitioner(s) Mr. Shyam Manohar, Adv. Ms. Kiran Pandey, Adv. Ms. Isha Yadav, Adv. Mr. Laxmi Sewak,
Adv. Ms. Manju Jetley, AOR
For Respondent(s) Ms. Sharmila Upadhyay, AOR Mr. Sarvjit Pratap Singh, Adv. Ms. Supriya R Pandey,
Adv. Mr. Rajesh Sharma, Adv.
ORDER
1. The petitioner seeks his enlargement on bail in P.S.Case No.91 of 2019, registered
at Police Station Semiliguda, District Koraput, out of which T.R.Case No.27 of 2019 is
pending in the Court of Addl.Sessions Judge-cum-Special Judge, Koraput, for commission
of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, `the NDPS Act’).
2. The prosecution case appears to be that the police party while on patrolling duty on
02.10.2019 at about 12.30 p.m. on Nandapur-Semiliguda road MDR-55, spotted one full
body twelve wheeler Truck (Eicher) bearing No.EB-13-BD-5753 coming from Nandapur
side at a high speed and accordingly they chased and detained the truck at Bodenga
Chhak and found three persons boarded in the said truck including the driver. Eventually,
247 kg. Ganja was recovered from the truck. The petitioner was one of the occupants of
the truck and was arrested at the spot. He has been in custody for more than three and a
half years. There are no criminal antecedents against the petitioner.
3. We are informed that the trial has commenced but only 1 out of the 19 witnesses
has been examined. The conclusion of trial will, thus, take some more time.
4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned
counsel for 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.
5. However, we find some merit in the contention of learned counsel for the respondent
– State that the petitioner being not a resident of the State of Orissa, some stringent
conditions are required to be imposed upon him.
6. Consequently, while directing that the petitioner shall be released on bail on his
furnishing bail bonds to the satisfaction of the Trial Court, it is directed that he shall be
required to produce two local sureties before the Trial Court. The petitioner shall also
1
71
appear before the Trial Court on every date of hearing. In case he absents himself, it shall
be taken as a misuse of concession of bail granted to him today by this Court. Ordered
accordingly.
7. The Special Leave Petition stands disposed of accordingly.
8. As a result, pending interlocutory applications also stand disposed of.

2
•
72
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 25th January, 2022
Pronounced on: 8th February, 2022
+ BAIL APPLN. 51/2022
MAHESH … Petitioner
Through: Mr. Akshay Bhandari and
Mr. Digvijay Singh, Advocates
Versus
STATE (GOVT OF NCT OF DELHI) … Respondent

Through: Ms. Kusum Dhalla, APP for State
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
.'
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The present application has been preferred under Section 439 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”)
for seeking regular bail in FIR bearing No. 192/2017 registered at Police
Station Crime Branch under Section 22 of Narcotics, Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS
Act”).
2. The factual matrix in the instant case, as submitted by the

prosecution, is as under:
BAIL APPLN. 51/2022 Page 1 of 18

73
a) On 29th October 2017, ASI Pawan Kumar of Narcotics Cell

Crime Branch, received a secret information that one person
namely Kamal Kalra resident of Rohini Delhi who was involved in
sale & supply of Ecstasy (a party drug) in Delhi-NCR, and would
come near Goodwill Apartment Sector-13, Rohini, Delhi with his
associate Akshay in between 06:30-07:00 PM to deliver Ecstasy to
someone. The secret information was shared with Inspector/NCB,
who verified the facts and conveyed the same to ACP/NCB. The
ACP ordered to conduct a raid. The secret information was reduced
into writing vide DD No. 07 dated 29th October 2017 at 05:50 PM
at Narcotics Cell, Crime Branch and the same was forwarded to
senior officers in compliance of Section 42 of the NDPS Act.
b) After obtaining permission from senior officers and

following all the mandatory provisions under NDPS Act, ASI
Pawan Kumar organized a raiding party comprising of himself, ASI
Satbir Singh, and HC Satender Pal and left for the spot at 06:00 PM
vide DD No. 8 in a private vehicle No. HR-10N-0449. On the way
to the spot, public persons ";,were requested to join the raiding party
···"j~Y'."J'
but none of them agreed.
c) Trap was laid at the spot and at the instance of informer, one
person was apprehended at about 07:05 PM whose identity was
revealed as Kamal Kalra s/o Rajinder Kaira r/o F-3/58 (2nd Floor)
Sector-11, Rohini, Delhi. The apprehended person was apprised
about the secret information and his legal rights to be searched in

74
presence of a Gazetted Officer or Magistrate. A written notice u/s

50 NDPS Act was also served upon him, but he declined to be
searched in presence of a G.O/Magistrate.
d) Thereafter his formal search was carried out wherein, 100

Pills of Ecstasy (weighing 42 grams) were recovered from his
possession. The recovered contraband was seized after taking out
two samples of 10 pills each. Accordingly, the FIR bearing No.
192/17 dated 29th October 2017 under Sections 22/29 of the NDPS
Act was registered at Crime Branch and further investigation of the
case was carried out by ASI Dushyant Kumar.
e) During investigation, IO/ASI Dushyant Kumar arrested the

accused Kamal Kalra who made a disclosure statement, stating
therein that he procured the recovered contraband from Mahesh
Goel and disclosed the Mobile number of the Applicant. Accused
Kamal Kalra was allowed to use his seized Mobile phone during PC
remand just to apprehend the applicant.
f) Accordingly, at the";, instance of accused Kamal Kalra,

···"j~Y'."J'
Applicant was apprehended at 8:30 PM on 31st October 2017 from
Dwarka and 20 grams of 3,4-Methylenedioxymethamphetamine
(MDMA) was recovered from his possession and subsequently he
was arrested in the case. Exhibits were sent to FSL for analysis and
the report thereof received was positive for Ecstasy (MDMA).

75
3. The investigation has been completed and chargesheet has been

filed before the Court of Learned ASJ. Charges have been framed by the
Learned Trial Court on 15th November 2018 qua the commission of
offences under Sections 22 and 29 of the NDPS Act.
4. Mr. Akshay Bhandari assisted by Mr. Digvijay Singh, learned

counsels for the Applicant submitted that the present case as alleged
against the Applicant is false and fabricated.
5. Learned counsels further submitted that the main accused against

whom there is an allegation of being in possession of 42 grams of Ecstasy
has already been enlarged on bail by a Coordinate Bench of the Hon‟ble
High Court vide the order dated 17th October 2019. The allegation against
the Applicant is that he was found in possession of 20 grams of Ecstasy
which is much lesser than the allegation against the main accused and
therefore, it has been submitted that the Applicant be released on bail as
the case of the Applicant is on a better footing.
6. Furthermore, it was submitted by the learned counsels that the

Applicant has been languishing ";,in jail for more than 4 years as an
···"j~Y'."J'
undertrial accused. So far, only two witnesses have been examined,
therefore there is no chance that the trial shall be concluded in near future.
7. Per contra, Ms. Kusum Dhalla, learned APP for State vehemently
opposed the Bail Application and submitted that the contraband recovered
from the Applicant was of commercial quantity. In case, bail is granted to
the applicant it is quite likely that he may, again, get involved in drug

76
trafficking and jump bail. Furthermore, it was submitted that the CDR
analysis of mobile phones of both the accused also confirm their
proximity and presence at the place of delivery of contraband. After
completion of investigation, charge sheet was filed in the court. CDR of
both the accused is also a part of the charge-sheet. Keeping in view of
above explained facts and circumstances, learned APP submitted that the
present application deserves to be dismissed.
8. Heard learned counsels for the parties and perused the record,
specifically the averments made in the petition, the contents of the FIR,
and the Status Report filed by the State.
9. In light of the aforesaid, it is pertinent to refer and analyze the

provisions and objective of the NDPS Act. Section 37 of the Act 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
···"j~Y'."J'
shall be cognizable;
(b) no person accused of an offence

punishable for offences under section 19 or
section 24 or section 27A and also for
offences involving commercial quantity shall
be released on bail or on his own bond
unless-

77
(i) the Public Prosecutor has been

given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor

opposes 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.
10. In view of the gravity of the consequences of drug trafficking, the

offences under the NDPS Act have been made cognizable and non-
bailable. The Section does not allow granting bail for offences punishable
under Section 19 or Section 24 or Section 27A and for offences involving
commercial quantity unless the two-fold conditions prescribed under the
";,
Section have been met. The conditions

···"j~Y'."J'include - hearing the Public
Prosecutor and satisfaction of the court based on reasonable grounds that
the accused is not guilty of the offence and that he is likely to not commit
an offence of a similar nature.
11. The fetters on the power to grant bail do not end here, they are over
and above the consideration of relevant factors that must be done while
considering the question of granting bail. The Court also needs to be

78
satisfied before grant of bail about the scheme of Section 439 of the Code.
Thus, it is evident that the present Section limits the discretion of the court
in matters of bail by placing certain additional factors over and above,
what has been prescribed under the Code.
12. While considering the question of bail, the Court under Section
37(b)(ii) of the NDPS Act is not required to be merely satisfied about the
dual conditions i.e., prima facie opinion of the innocence of the accused
and that the accused will not commit a similar offence while on bail, but
the court must have „reasonable grounds‟for such satisfaction.
13. The term „reasonable grounds‟ under Section 37(b)(ii) has been
interpreted by the Hon‟ble Supreme Court in the case of Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where an appeal
was preferred against the order granting bail under the NDPS Act by the
High Court. The prosecution alleged that the raiding party seized nearly
400 kgs of poppy straw from the possession of the accused therein. The
special court rejected the bail while the High Court granted the bail on the
ground that the recovery was not from the exclusive possession of the
";,
accused, but other family members were also involved. The Supreme
···"j~Y'."J'
Court set aside the order granting bail. In this context, it interpreted
„reasonable grounds‟under Section 37 of the Act, as under:
“7. The expression used in Section 37(1)(b)(ii) is

“reasonable grounds”. The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the

79
accused is not guilty of the offence charged and this

reasonable belief contemplated in turn points to
existence of such facts and circumstances as are
sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the offence
charged. The word “reasonable” has in law the prima
facie meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult to
give an exact definition of the word “reasonable”.
14. Thus, the term „reasonable grounds‟ is not capable of any rigid
definition nor of being put into any straight-jacket formula, but its
meaning and scope will be determined based on the surrounding facts and
circumstances of each case. Thus, what may be reasonable in one set of
facts may not be reasonable in another set of facts.
15. The Supreme Court recently in the case of Union of India v. Md.
Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with
respect to Section 37 of the Act. After analysing the previous decisions of
the Hon‟ble Supreme Court, the court prescribed the following test for
granting bail under Section 37 of the
";,
NDPS Act:
···"j~Y'."J'
“20. Based on the above precedent, the test which the
High Court and this Court are required to apply while
granting bail is whether there are reasonable grounds
to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb
the menace of drug-trafficking in the country,

80
stringent parameters for the grant of bail under the

NDPS Act have been prescribed.”
16. Thus, the Court must be conscious about the mischief that is sought
to be curbed by the Act and the consequences that might ensue if the
person accused of the offence under the Act is released on bail. The court
ought to be satisfied on the basis of reasonable grounds discernible from
the facts and circumstances that the Petitioner is not guilty of offences that
the accused is charged with. Additionally, the court also needs to be
satisfied that the person so released will not commit the offence while
being on bail.
17. In the instant case, the Applicant has been accused of and charged
for possessing 20 grams of Ecstasy being a commercial quantity.
However, the main accused, charged with the possession of a larger
quantity of contraband and on the basis of whose statement the Applicant
was arraigned and subsequently raided upon in the instant case, has
already been released on Bail by a Coordinate Bench of this High Court.
Thus, the application of the Applicant merits indulgence of this Court on
the ground of parity. ";,
···"j~Y'."J'
18. Further, neither the Status Report on record, nor the learned APP in
the course of her arguments, has cited the previous involvement of the
Applicant in any other criminal cases, and as such the Applicant has clean
antecedents, as evident from material on record.
19. Therefore, proceeding to the application of Section 37 in the instant

matter, the APP has been heard who has vehemently opposed the bail

81
petition. In light of the aforesaid facts and circumstances, prima facie the
second condition prescribed under the section is satisfied. This Court is
satisfied that there are reasonable grounds, based on the analysis of the
provision in the foregoing paragraphs and its application to the facts of the
case, that the Applicant praying for regular bail can be allowed indulgence
of this Court.
20. Further, in the instant case, the Applicant has been incarcerated for
more than four years as an undertrial, whereas on date, two of the
witnesses have been examined and the trial remains pending. Speedy
Justice is a Fundamental Right enshrined under the ambit of Article 21 of
the Constitution of India, and the same needs to be given effect by this
Court in letter and in spirit, else it will remain as a dead letter of law.
21. The Constitution Bench judgment of the Hon‟ble Supreme Court in

Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 has laid down
the detailed guidelines with respect to speedy trial and observed as under:
“86. In view of the above discussion, the following

propositions emerge, ";,meant to serve as guidelines. We
must forewarn that these propositions are not
···"j~Y'."J'
exhaustive. It is difficult to foresee all situations. Nor
is it possible to lay down any hard and fast rules.
These propositions are:
(1) Fair, just and reasonable procedure implicit

in Article 21 of the Constitution creates a right
in the accused to be tried speedily. Right to
speedy trial is the right of the accused. The fact
that a speedy trial is also in public interest or

82
that it serves the social interest also, does not

make it any the less the right of the accused. It is
in the interest of all concerned that the guilt or
innocence of the accused is determined as
quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21

encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and
re-trial. That is how, this Court has understood
this right and there is no reason to take a
restricted view.
(3) The concerns underlying the right to speedy

trial from the point of view of the accused are:
(a) the period of remand and pre-

conviction detention should be as short as
possible. In other words, the accused
should not be subjected to unnecessary or
unduly long incarceration prior to his
conviction;
(b) the worry, anxiety, expense and

disturbance to";, his vocation and peace,
resulting from···"j~Y'."J'
an unduly prolonged
investigation, inquiry or trial should be
minimal; and
(c) undue delay may well result in

impairment of the ability of the accused to
defend himself, whether on account of
death, disappearance or non-availability of
witnesses or otherwise.

83
(4) At the same time, one cannot ignore the fact

that it is usually the accused who is interested in
delaying the proceedings. As is often pointed
out, “delay is a known defence tactic”. Since the
burden of proving the guilt of the accused lies
upon the prosecution, delay ordinarily
prejudices the prosecution. Non-availability of
witnesses, disappearance of evidence by lapse of
time really work against the interest of the
prosecution. Of course, there may be cases
where the prosecution, for whatever reason, also
delays the proceedings. Therefore, in every case,
where the right to speedy trial is alleged to have
been infringed, the first question to be put and
answered is — who is responsible for the delay?
Proceedings taken by either party in good faith,
to vindicate their rights and interest, as
perceived by them, cannot be treated as delaying
tactics nor can the time taken in pursuing such
proceedings be counted towards delay. It goes
without saying that frivolous proceedings or
proceedings taken merely for delaying the day of
reckoning cannot be treated as proceedings
taken in good faith.";,
The mere fact that an
···"j~Y'."J'
application/petition is admitted and an order of
stay granted by a superior court is by itself no
proof that the proceeding is not frivolous. Very
often these stays are obtained on ex parte
representation.
(5) While determining whether undue delay has

occurred (resulting in violation of Right to
Speedy Trial) one must have regard to all the

84
attendant circumstances, including nature of

offence, number of accused and witnesses, the
workload of the court concerned, prevailing
local conditions and so on — what is called, the
systemic delays. It is true that it is the obligation
of the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and
practical approach should be adopted in such
matters instead of a pedantic one.
(6) Each and every delay does not necessarily

prejudice the accused. Some delays may indeed
work to his advantage. As has been observed by
Powell, J. in Barker [33 L Ed 2d 101] “it cannot
be said how long a delay is too long in a system
where justice is supposed to be swift but
deliberate”. The same idea has been stated by
White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the
following words:
„… the Sixth Amendment right to a speedy

trial is necessarily relative, is consistent
with delays, and has orderly expedition,
rather than mere speed, as its essential
";,
ingredients; ···"j~Y'."J'
and whether delay in
completing a prosecution amounts to an
unconstitutional deprivation of rights
depends upon all the circumstances.‟
However, inordinately long delay may be taken

as presumptive proof of prejudice. In this
context, the fact of incarceration of accused will
also be a relevant fact. The prosecution should
not be allowed to become a persecution. But

85
when does the prosecution become persecution,

again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is

called the „demand‟ rule. An accused cannot try
himself; he is tried by the court at the behest of
the prosecution. Hence, an accused's plea of
denial of speedy trial cannot be defeated by
saying that the accused did at no time demand a
speedy trial. If in a given case, he did make such
a demand and yet he was not tried speedily, it
would be a plus point in his favour, but the mere
non-asking for a speedy trial cannot be put
against the accused. Even in USA, the relevance
of demand rule has been substantially watered
down in Barker [33 L Ed 2d 101] and other
succeeding cases.
(8) Ultimately, the court has to balance and

weigh the several relevant factors — „balancing
test‟ or „balancing process‟ — and determine in
each case whether the right to speedy trial has
been denied in a given case.
(9) Ordinarily speaking,

";,
where the court comes
···"j~Y'."J'
to the conclusion that right to speedy trial of an
accused has been infringed the charges or the
conviction, as the case may be, shall be quashed.
But this is not the only course open. The nature
of the offence and other circumstances in a given
case may be such that quashing of proceedings
may not be in the interest of justice. In such a
case, it is open to the court to make such other
appropriate order — including an order to

86
conclude the trial within a fixed time where the

trial is not concluded or reducing the sentence
where the trial has concluded — as may be
deemed just and equitable in the circumstances
of the case.
(10) It is neither advisable nor practicable to fix

any time-limit for trial of offences. Any such rule
is bound to be qualified one. Such rule cannot
also be evolved merely to shift the burden of
proving justification on to the shoulders of the
prosecution. In every case of complaint of denial
of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay. At
the same time, it is the duty of the court to weigh
all the circumstances of a given case before
pronouncing upon the complaint. The Supreme
Court of USA too has repeatedly refused to fix
any such outer time-limit in spite of the Sixth
Amendment. Nor do we think that not fixing any
such outer limit ineffectuates the guarantee of
right to speedy trial.
(11) An objection based on denial of right to

";,
speedy trial and···"j~Y'."J'
for relief on that account,
should first be addressed to the High Court.
Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings,
except in a case of grave and exceptional nature.
Such proceedings in High Court must, however,
be disposed of on a priority basis.”

87
22. It is also pertinent to point out that these guidelines have

subsequently been upheld by a seven-judge bench of the Hon‟ble Supreme
Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578.
These guidelines were further applied by the Hon‟ble Supreme Court in
the subsequent decision of Pankaj Kumar v. State of Maharashtra (2008)
16 SCC 117, wherein the court laid down the following test with regard to
the application of the guidelines:
“23. In every case, where the right to speedy trial is

alleged to have been infringed, the court has to
perform the balancing act upon taking into
consideration all the attendant circumstances,
enumerated above, and determine in each case
whether the right to speedy trial has been denied in a
given case. Where the court comes to the conclusion
that the right to speedy trial of an accused has been
infringed, the charges or the conviction, as the case
may be, may be quashed unless the court feels that
having regard to the nature of offence and other
relevant circumstances, quashing of proceedings may
not be in the interest of justice. In such a situation, it
is open to the court to make an appropriate order as it
may deem just and equitable including fixation of time
for the conclusion of trial.”
";,
···"j~Y'."J'
23. In the instant case the Applicant has been in jail for more than four
years. Out of a total of 14 witnesses only two witnesses have been
examined as on date, and as such there is no probability of the trial being
concluded in the near future. Thus, pending trial the Applicant cannot be
kept incarcerated for an indefinite period. Therefore, this Court must step
in to ensure that speedy justice is done, and injustice is not caused to the

88
undertrial Applicant. Further, as already mentioned, the main accused

charged with the possession of a larger quantity of contraband has already
been enlarged on Bail by a Coordinate Bench of this High Court. Thus,
the application of the Applicant is also entitled to bail on the ground of
parity.
24. In view of the aforementioned facts, circumstances, analysis and

reasoning, keeping in mind the legal provisions specifically on the ground
of parity, and clean antecedents of the Applicant, this Court is inclined to
allow the instant bail application albeit with stringent conditions given the
gravity of the accusations levelled.
25. It is accordingly directed that the Applicant shall be released on bail

upon his furnishing of a personal bond of Rs. 50,000/- (Rupees Fifty
Thousand only), with two sureties of like amount to the satisfaction of the
Investigating Officer, subject to the following conditions:
a) he shall surrender his passport, if any, to the Investigating

Officer and shall under no circumstances leave India without
prior permission of the Court";, concerned;
···"j~Y'."J'
b) he shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case;
c) he shall provide his mobile number(s) to the Investigating
Officer and keep it operational at all times;
d) he shall drop a PIN on the Google map to ensure that his
location is available to the Investigating Officer;

89
e) he shall commit no offence whatsoever during the period he is

on bail;
f) he shall appear before the Court concerned on every date; and
g) in case of change of residential address and/or mobile number,
he shall intimate the same to the Investigating Officer/ Court
concerned by way of an affidavit.
26. The Trial Court is directed to continue with the trial and endeavour
to conclude the same as expeditiously as possible.
27. Accordingly, the instant bail application stands allowed.
28. It is, however, made clear that the observations made herein qua the
Applicant, while allowing this application, shall have no bearing,
whatsoever, on the merits of the case or on the trial pending before the
Court concerned.
29. Copy of the judgment be sent to the concerned Jail Superintendent

for compliance.
30. The judgment be uploaded on

";, the website forthwith.
···"j~Y'."J'
(CHANDRA DHARI SINGH)

JUDGE
February 8, 2022
gs/@dityak

90
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 553/2023
KADIR ..... Petitioner
Through: Mr Aditya Aggarwal and Mr Naveen
Panwar, Advs.
versus
STATE GOVT. OF NCT OF DELHI ..... Respondent

Through: Mr Aashneet Singh, APP for State
ASI Raj Kumar, District Shahdara
SI Hari Om, Spl. Staff North
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 20.04.2023
1. This is an application seeking grant of regular bail in FIR No.

152/2021 dated 07.06.2021, under Sections 20/29 NDPS Act, registered at
Police Station – Gulabi Bagh.
2. As per the FIR, the applicant was apprehended with 22.5 kgs of ganja
and thereafter has been in custody since 07.06.2021.
3. It is stated by Mr Aggarwal, learned counsel appearing for the
applicant that in the present case, the seizure itself is showing different
quantities. He states that as per the FIR, 22.5 kgs ganja including the bag
was seized from the applicant. At the time of sampling under section 52-A
NDPS application, the weight of the contraband was 22.35 kgs including the
bag. It is stated that at the time of section 52-A sampling again, the
photographs shows the weight of the contraband as 22 kgs with the bag.

This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 23/01/2024 at 18:05:55
91
4. Mr Aggarwal has drawn the attention of the Court to the status report
which shows that on 14.06.2021, four samples weighing 100 grams were
drawn from the main parcels. The parcels were deposited with the malkhana
and were thereafter sent to FSL. As per the examination report received
from the FSL, the weight of Ex. A-1 was found approximately 134.8 grams
in place of 100 grams and the weight of Ex B-1 was found to be 83.6 grams
in place of 100 grams. He states that the said discrepancy in the weight of
samples erodes the credibility of the sampling process as well as the version
of the prosecution and entitles the applicant to bail.
5. He has drawn my attention to the judgment of Sanjay Prasad v. State
(Govt. of NCT) of Delhi in CRL. APPEAL No. 1074/2013 dated 08.12.2015
wherein the court observed as under:
“12 In the judgment of the Apex Court while considering similar
proposition on the discrepancy i.e. in the weight of the sample,
the Apex Court in Rajesh Jagdamba (Supra) had held as under:-
“The credibility of the recovery proceeding is considerably
eroded if it is found that the quantity actually found by PW-1 was
less than the quantity sealed and sent to him. As he rightly
emphasized, the question was not how much was seized, but
whether there was an actual seizure, and whether what was
seized was really sent for chemical analysis to PW-1. The
prosecution has not been able to explain this discrepancy and,
therefore, it renders the case of the prosecution doubtful.”
13 Thus it is clear that the credibility of the recovery would
become considerably doubtful if there is a major discrepancy in
the sample which was drawn and what was actually received in

92
the FSL. The difference of 60 gms is wholly unexplained by the

prosecution. A sample of 200 gms having become 260 gms does
not appear to be justified. Benefit of doubt accordingly accrues
in favour of the appellant as what was seized and what was
finally analyzed to nail the appellant becomes doubtful.”
6. He also places reliance on the judgment of Mohd. Ramzan v. State
(NCT of Delhi) (2005) 82 DRJ 435 and more particularly para 7 and 8
which reads as under:
7. With this position of law, the case cited by the petitioner
[Rajesh Jagdamba Avasthi (supra)] and the case cited by the
counsel for the State [R. Paulsamy (supra)] are to be
considered. In the case of Rajesh Jagdamba Avasthi (supra),
the facts were that a recovery of charas from the shoes of the
accused was alleged to have been made. 100 gms from the shoe
for right foot and 115 gms from the left foot. These two
quantities were placed in two envelopes „A‟ and „B‟ and were
sent to the Junior Scientific Officer who was examined in that
case as PW1. The envelopes were sealed and sent to the said
Junior Scientific Officer who indicated that the seals were
intact. However, on opening by the Junior Scientific Officer, the
two envelopes, „A‟ and „B‟ were found to contain 98.16 and
82.54 gms of charas as distinct from the 100 gms and 115
(respectively) said to have been recovered from the accused.
Insofar as the discrepancy between 100 gms and 98.16 is
concerned, the Supreme Court found that the discrepancy was
minor but, with regard to the discrepancy of the contents of

93
envelope „B‟ which was from 115 gms to 82.54 gms, the
Supreme Court found that such a discrepancy was a major one
and it cast serious doubts on the prosecution's case.
8. The High Court in that case had upheld the conviction of the
appellant despite these discrepancies. However, the Supreme
Court, upon a consideration of the entire case, observed as
under:
“We do not find it possible to uphold this finding of the High
Court. The appellant was charged of having been found in
possession of Charas weighing 180.70 gms. The charas
recovered from him was packed and sealed in two envelopes.
When the said envelopes were opened in the laboratory by
Junior Scientific Officer, PW-1, he found the quantity to be
different. While in one envelope the difference was only
minimal, in the other the difference in weight was significant.
The High Court itself found that it could not be described as a
mere minor discrepancy. Learned counsel rightly submitted
before us that the High court was not justified in upholding the
conviction of the appellant on the basis of what was recovered
only from the envelope “A” ignoring the quantity of Charas
found in envelope “B”. This is because there was only one
search and seizure, and whatever was recovered from the
appellant was packed in two envelopes. The credibility of the
recovery proceeding is considerably eroded if it is found that
the quantity actually found by PW-1 was less than the quantity
sealed and sent to him. As he rightly emphasized, the question

94
was not how much was seized, but whether there was an actual
seizure, and whether what was seized was really sent for
chemical analysis to PW-1. The prosecution has not been able
to explain this discrepancy and, therefore, it renders the case of
the prosecution doubtful.”
7. Mr Singh, learned APP states that the learned Sessions Court has
written to the FSL asking for an explanation for the discrepancy in the two
samples. The report is yet to be received.
8. The judgment of Mohd. Ramzan (supra) is squarely applicable to the
facts of the present case. The Coordinate Bench in Mohd. Ramzan (supra)
has relied upon the judgment of the Hon’ble Supreme Court in Rajesh
Jagdamba Avasthi v. State of Goa reported in 2005 (1) Apex Criminal
Judgment 240 and has held that the discrepancy in the weight of the samples
seized under Section 52 A of NDPS Act and the report of the FSL erodes the
credibility of the recovery proceedings.
9. I am of the view that the discrepancy in the weight of the sample goes
to the root of the matter and questions the actual seizure itself. The
prosecution has not been able to explain this discrepancy at this stage. It
erodes the credibility of the recovery proceedings.
10. Since the recovery of the quantity of the contraband itself has become
doubtful, the applicability of Section 37 of the NDPS Act at this stage
cannot be insisted upon. The applicant has no other criminal antecedents.
However, the applicant needs to satisfy the triple test viz. flight risk;
influencing any witness and tampering with evidence. In my view, the same
can be taken care of by imposing stringent bail conditions upon the
applicant.

95
11. The applicant has been in custody since 07.06.2021 which is about 1
year and 10 months. Charge-sheet has been filed in the present case and
charges have also been framed and the custodial interrogation of the
applicant is not required. The trial is also not likely to conclude in near
future and the continued incarceration of the applicant will not serve any
purpose. Since the applicant is an under trial prisoner and has already
undergone about more than 1 year and 10 months of incarceration and since
the applicant has no other previous criminal antecedents, I am inclined to
allow the application.
12. For the aforesaid reasons, the applicant is directed to be released on
bail in FIR No. 152/2021 dated 07.06.2021, under Sections 20/29 NDPS
Act, registered at Police Station – Gulabi Bagh, subject to the following
conditions:
(a) The applicant shall furnish a personal bond in the sum of Rs. 10,000/-
(Rupees Ten Thousand Only) each with 01 surety in the like amount, to
the satisfaction of the Trial Court;
(b) The applicant shall not leave the country and if the applicant has a
passport, he shall surrender the same before the Trial Court;
(c) The applicant shall appear before the trial Court on every date of
hearing;
(d) The applicant shall furnish to the IO/SHO concerned his cellphone
number on which the applicant may be contacted at any time and shall
ensure that the number is kept active and switched-on at all times;
(e) The applicant shall drop a Google pin location from his mobile phone
to the IO which shall be kept alive;

•
Iii .•
96
(f) The applicant shall not indulge in any act or omission that is unlawful,
illegal or that would prejudice the proceedings in pending cases, if any;
(g) The applicant or his family members/relatives/friends will not tamper
or influence or contact any of the witnesses and/or evidence in anyway.
13. Nothing stated hereinabove shall tantamount to an expression of
opinion on the merits of the case.
14. The application is disposed of accordingly.
Copy of this order be given dasti under the signatures of Court
Master/Private Secretary.
JASMEET SINGH, J
APRIL 20, 2023
sr
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IN THE COURT OF SH.

SUDHIR KUMAR SIROHI,

IN THE MATTER OF:

1. Union of India v Mohanlal & 14 - 17, 19

Prolonged incarceration and delay in trial will override

5. Rabi Prakash v. The State of

UNION OF INDIA v. MOHANLAL 379

b A. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 52-A

380 SUPREME COURT CASES (2016) 3 sec

C. Narcotics, Intoxicants and Liquor- Menace of drug trafficking, stated

UNION OF INDIA v. MOHANLAL 381

382 SUPREME COURT CASES (2016) 3 sec

UNION OF INDIA v. MOHANLAL 383

384 SUPREME COURT CASES (2016) 3 sec

UNION OF INDIA v. MOHANLAL 385

386 SUPREME COURT CASES (2016) 3 sec

UNION OF INDIA v. MOHANLAL 387

388 SUPREME COURT CASES (2016) 3 sec

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 389

The Judgment of the Court was delivered by

390 SUPREME COURT CASES (2016) 3 sec

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 391

392 SUPREME COURT CASES (2016) 3 sec

Item Total quantity Total quantity Difference

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 393

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

394 SUPREME COURT CASES (2016) 3 sec

Item Total quantity Total quantity Difference

! Hashish ! 77,350.076 kg ! 12,298.578 kg ! Destroyed more !

Item Total quantity Total quantity Difference e

• The response by the Police Heads is as follows:

Item Total quantity Total quantity Difference f

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 395

b 5.9. DIRECTORATE OF REVENUE INTELLIGENCE

396 SUPREME COURT CASES (2016) 3 sec

Item Total quantity Total quantity Difference

Charas 7252.513 kg 533.46 kg

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 397

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

Note-The total amount of Ganja seized post-2005 was 25,913.225

Contrab~d I::: 8,~434:~8lk~g-I28 6~~:s:~;;5 -7 ~rl~i23

398 SUPREME COURT CASES (2016) 3 sec

Item Total quantity Total quantity Difference

Contrab~d i:::. 88 kg 0.000 il:fii:~: C

Item Total quantity Total quantity Difference d

Smack 20,045.293 kg 104.631 kg 19,940.662

Item Total quantity Total quantity Difference

Ganja 1,76,289.677 kg 2578.712 kg

UNION OF INDIA v. MOHANLAL (Dr Thakur, C.J.) 399

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

Item Total quantity Total quantity Difference

h L....... 436 kg···············L. .............. 87 kg .............. L349 kg (80.04%)

400 SUPREME COURT CASES (2016) 3 sec

Item Total quantity Total quantity Difference

Smack 455.543 kg 244.443 kg 211.1 kg

Heroin 503.664 kg 13.759 kg 489.905

Item Total quantity Total quantity Difference