Violation of Section 52A NDPS vitiates the sample collection procedure and benefits the accused. Strict compliance with the NDPS Act is necessary to prevent tampering with the samples.

JUDGMENT

Jasmeet Singh, J. This is an application seeking bail in case being Crime No. VIII/19/DZU/2022, under section 8/22(c)/23(c)/29 of the Narcotic Drugs and Psychotropic Substances Act,1985 ("NDPS").

2. According to the prosecution, the brief facts of the case are:

A. An information was received by Junior Intelligence Officer (JIO) of Narcotics Control Bureau (hereinafter NCB/the Respondent), Sunil Kumar, whereby it was stated that the parcel bearing AWB No. 7702909491 is lying at DHL Express Pvt. Ltd. Rama Road, Kirti Nagar, New Delhi and was suspected to contain psychotropic substance and in relation thereto the said officer informed the Superintendent, Sh. Amit Kumar Tiwary who directed another officer Anoop Kumar (JIO) to take necessary action.

B. In pursuance of the above said directions, a team was constituted and on the same day at around 3pm the team departed from NCB office and reached DHL office at around 3:40pm. Thereafter, at DHL Express office the team disclosed the information to the Supervisor, Mr. Ankur Singh who joined the team as independent witness.

C. The said parcel was opened in which 11 lace rolls and 3 pieces of clothes were found. After checking one lace roll it was found to contain 120 strips of Tramadol tablets, 10 tablets in each strip. The remaining lace rolls were examined and led to the discovery of total 13200 strips of Tramadol tablets. The panchnama was prepared on the spot i.e., 24.02.2022. The contraband was seized, sealed and deposited in the Malkhana on 24.02.2022. On 25.02.2022, the JIO, Anoop Kumar submitted the seizure report.

D. On 24.02.2022, during the course of enquiry the above said officials got the information from the owner of the DHL office that the said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary. He was apprehended on 25.02.2022 by the team of the Respondent.

E. On the basis of disclosure statement of Ganesh Chaudhary, on 28.02.2022, second seizure was made at Terminal 3, IGI Airport, New Delhi from the consignment number IZ98X1W70451682510 where recovery of 15000 Zolpidem tablets was made. Further, on 02.03.2023, on the basis of Ganesh Chaudhary's disclosure statement, a recovery of 19440 Tramadol tablets was made from 3 packages at Global India Express Pvt. Ltd., Mahipalpur, New Delhi.

F. Ganesh Chaudhary disclosed that the said parcel was sent by coaccused Tamir Ali to be couriered to USA. On the basis of this disclosure statement, the co-accused Tamir Ali was arrested.

G. Further on 06.03.2022, on initial enquiry, co-accused Tamir Ali allegedly disclosed that his three other associates namely the present Applicant i.e., Kashif and co-accused Rizwan and Zahid who were also involved in sending NRx Tablets to USA, have gone to Himachal on tour and also disclosed they are travelling in a Creta car and will return to Lucknow from Himachal via Delhi in the night of 06.03.2022. Consequently, the Applicant was arrested near Jewar Toll Plaza on 07.03.2022.

H. The Applicant was involved in sending the parcel to co-accused Ganesh Chaudhary through bus conductor and also provided the address of the consignee on WhatsApp to Ganesh Chaudhary.

3. The learned counsel for the Applicant has pleaded the following submissions:

A. The Applicant was arrested merely on the disclosure statement of coaccused Tamir Ali who stated that the Applicant is also involved in the business of sending NRx Tablets abroad. In light of Apex Court's judgment in Tofan Singh v. State of Tamil Nadu, (CRL Appeal No. 152/2013) decided on 29.10.2020, it is submitted that any statement made by accused under section 67 of NDPS Act either retracted or not is inadmissible in evidence except to the extent of any recovery having been made pursuant to the alleged disclosure statement.

B. The learned counsel for the Applicant has laid emphasis that there is violation of Standing Order 1/88 in drawing of Samples. He states neither the seizure memo was prepared on the spot nor sampling was d