The judgment established the importance of a reasonable time frame for filing an application for sample collection and certification under section 52A NDPS to prevent tampering with seized contraband and ensure the integrity of the sample collection procedure.

JUDGMENT

1. This is an application seeking bail in respect of 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").

FACTUAL MATRIX

2. On the basis of secret information, Narcotics Control Bureau (hereinafter "NCB") constituted the team and reached the office of DHL Express Pvt. Ltd., Kirti Nagar, New Delhi where parcel bearing AWB No. 7702909491 was lying suspected to contain psychotropic substances. The said parcel was opened and found total 13,200 strips of Tramadol tablets hidden in 11 lace rolls. 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.

3. On 24.02.2022, during the course of enquiry from the owner of the DHL office, it was informed that said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary who was arrested on 25.02.2022. He disclosed that the said parcel was booked on the IDs of Mr. Nishu Bhatnagar for one Tamir Ali i.e., Applicant belonging to Lucknow.

4. On 04.03.2022, the accused Ganesh Chaudhary tendered another statement wherein he disclosed that he booked the parcels of NRx tablets to USA on the directions of the Applicant i.e, Tamir Ali and Kashif, both resident of Lucknow.

5. NCB team reached Lucknow to arrest the Applicant who was apprehended near Transport Nagar Metro Station, Lucknow on 06.03.2022 on identification by Ganesh Chaudhary.

6. On the Applicant's disclosure statement tendered on 06.03.2022, he named three of his associates namely Kashif, Mohd Rizwan Siddiqui @ Shaan and Mohd Zahid Khan, but all three had left for Shimla and would return to Lucknow via Delhi on 06.03.2022. NCB constituted the team and all were intercepted near Jewar Toll Plaza. He further revealed that he used to procure illegal NRx tablets from Mohd Rizwan Siddiqui@ Shaan and Mohd Zahid Khan and thereafter, he packed these drugs into lace rolls and food items. These packed items were sent to Accused Ganesh Chaudhary to send these parcels to USA.

7. On the disclosure statement of Ganesh Chaudhary, two other parcels were seized on 28.02.2022 and 02.03.2022 in which 15,000 Zolpidem tablets and 19,440 Tramadol tablets were recovered respectively.

CONTENTIONS

8. The learned counsel for the applicant has made the following submissions:

i. He stated that the name of the Applicant surfaced from the disclosure statement of the co-accused Ganesh Chaudhary, which is not admissible as per the Apex Court's judgment of Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1.

ii. The learned counsel strongly places reliance on the Standing Order 1/88 in the context of drawing of samples. He contends that neither seizure memo nor sampling was done at the spot where the alleged recovery was done. He relies on Clause 1.5 of the Standing Order 1/88 which reads as under:

"1.5 Place and time of drawal of sample.- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot."

iii. Learned counsel further contends that there is no explanation on the part of delay in making application under section 52A of NDPS Act for sampling before the Magistrate. There is no explanation for the inordinate delay by the respondent. The last seizure memo was prepared on 02.03.2022, but the application for drawing the sample under section 52A before Magistrate was made on 22.04.2022 i.e. after an inordinate delay of 51 days. Reliance in this regard in placed on Union of India v. Mohanlal, (2016) 3 SCC 379 wherein the Apex Court opines that the application to the Magistrate for sampling has to be moved immediately after seizure.

iv. He further submits that samples were sent to FSL only on 18.08.20