IMPORTANT POINT
Seizure of contraband drugs – Even if it is shown that procedure under Section 52A of NDPS Act is not followed, accused does not automatically become entitled to bail as a matter of right.

JUDGMENT

Heard learned counsel for the applicant and learned APP for the State.

2. This is an application for bail in respect of the offence punishable under Sections 8(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (‘NDPS Act’ for short) registered on 17.09.2021 vide C.R. No.83 of 2021 with Anti Narcotic Cell, Ghatkopar Unit, Mumbai.

3. The date of the incident is 17.09.2021. A secret information was received by the investigating agency on 17.09.2021 that around 2:00 p.m. a person carrying contraband Codeine and Chlorpheniramine mixed with cough syrup will be coming near Ghatkopar Mankhurd link road public toilet for the purpose of selling the contraband. The investigating agency arranged for 2 persons to act as panchas. They left for the place where the accused was supposed to come with the contraband as per the secret information. A person resembling the description that the police had received, arrived near the Ghatkopar Mankhurd link road public toilet. The person was carrying a khaki coloured gunny bag. The officer in charge of the raiding party approached the said person. The said person tried to flee but the police officer succeeded in apprehending him who is the present accused/applicant herein. Upon searching the applicant a sum of Rs.2000/- was recovered. After taking a search of the gunny bag, it revealed that the applicant was carrying with him 200 bottles of cough syrup which came to be recovered. The label pasted over the bottles of the cough syrup mentioned that it is Chlorpheniramine Maleate and Codeine Phosphate Syrup 100 ml. Further reading of the label revealed that every 5 ml of syrup contained 10 milligram of Codeine Phosphate. The applicant could not give any satisfactory answer as to where he got the contraband from. On the basis of these accusations, the offence came to be registered against the applicant.

4. The applicant was produced before the remand court and was initially remanded to police custody. During the police custody, the applicant made a disclosure that he was hiding a huge quantity of cough syrup in the shop that he had taken on rent. The police called 2 panchas and after preparing a memorandum panchanama took the applicant from the lock-up to the place where he kept the hidden contraband. The shop was situated at Barfpada, Virar East, Palghar. The lock was opened by the applicant with a key which was kept nearby. The police found 26 gunny bags lying in the shop which had in all 7700 bottles having the same label as the label on the earlier seized cough syrup bottles.

Submissions of learned counsel for the applicant:-

5. There is no compliance of Section 52A of the NDPS Act. The provisions of the NDPS Act are extremely stringent, coupled with various presumptions raised against the accused and stringent bail conditions, all made the NDPS Act a very stringent measure of legislation, which, the more stringent it is, must contain necessary safeguards against arbitrary search, seizure and arrest, or else it would fall foul of the fundamental rights chapter of the constitution and hence, the same requires a strict adherence to the law and procedures. The so-called technicalities of the NDPS Act are the only safeguards available to anyone prosecuted under the NDPS Act. That, these safeguards are the only remedies available to the innocent person to prove his innocence. The Hon’ble Supreme Court in Union of India Vs. Mohanlal and Anr., 2016 3 SCC 379, had directed all the investigating agencies to draw the representative samples that are supposed to be sent to the Central Forensic Science Laboratory (‘CFSL’ for short) for determination of the contraband before the Magistrate. The same has not been done in the present case. Reliance is placed on paragraph Nos.15 to 18 in Union of India Vs. Mohanlal and Anr. Pursuant to the directions of the Supreme Court in Union of India Vs. Mohanlal and Anr., the Government after 6 years accepted the mandate of Section 52A of the NDP