Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 4275

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Sharma, J.
Quentin Decon – Appellant
Versus
Customs – Respondent
Bail Appln. 71 of 2023
Decided On : 31-05-2023

Advocates appeared:
Mr. Akshay Bhandari, Mr. Anmol Sachdeva, Advocates, for the Petitioner.
Mr. AtuI Tripathi, Senior Standing Counsel with Mr. R.K. Shah, Advocate, for the Respondent.

The main legal point established in the judgment is that the defective sampling procedure at the time of recovery and seizure of contraband can be challenged during the trial before the Special Judge. The court emphasized the importance of the chemical analyst's testimony and the production of the contraband seized in the Court during the trial.

Headnote:
Sampling Procedure - Bail Application - NDPS Act, 1985 - [Sampling Procedure] - [Bail Application] - [Section 52, Section 52A, Section 76] - The court discussed the defective sampling procedure adopted by the Investigating Officer at the time of recovery and seizure of contraband. The applicant sought bail on the ground of defect in sampling procedure. The court examined the legal provisions under Section 52, Section 52A, and Section 76 of the NDPS Act, and the standing orders 1/88 & 1/89 issued by the Ministry of Finance. The court highlighted the judgments related to defective sampling and its impact on the prosecution's case. The court concluded that the procedure adopted with respect to contraband in the present case is not defective at this stage and the applicant will have the opportunity to prove the defective recovery and sampling during the trial before the Special Judge.
Fact of the Case:

The applicant sought bail under Section 439 of the Criminal Procedure Code, 1973, in a case registered by the Customs Department under Sections 21/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The case involved the recovery of a suspected narcotic substance, Heroin, from the applicant's luggage at the airport. The applicant challenged the defective sampling procedure adopted by the Investigating Officer at the time of recovery and seizure of the contraband.
Finding of the Court:

The court found that the procedure adopted with respect to the contraband in the present case is not defective at this stage. The court emphasized that the applicant will have the opportunity to prove the defective recovery and sampling during the trial before the Special Judge. The court dismissed the bail application and disposed of the pending applications.
Issues: The main issue was the defective sampling procedure adopted by the Investigating Officer at the time of recovery and seizure of the contraband. The court examined the legal provisions, standing orders, and relevant judgments related to defective sampling and its impact on the prosecution's case.
Ratio Decidendi: The court held that the procedure adopted with respect to the contraband in the present case is not defective at this stage. The court emphasized that the applicant will have the opportunity to prove the defective recovery and sampling during the trial before the Special Judge. The court highlighted the importance of the chemical analyst's testimony and the production of the contraband seized in the Court during the trial.
Final Decision: The court dismissed the bail application and disposed of the pending applications. The court communicated the judgment to the concerned Jail Superintendent and ordered the upload of the order on the website of the Court.

JUDGMENT

Amit Sharma, J.

1. The present application under Section 439 of the Criminal Procedure Code, 1973 (`CrPC') seeks regular bail in Sessions Case No. 867/2021, registered by the Customs Department, under Sections 21/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS') pending trial before the Court of the learned Special Judge (NDPS), Dwarka Courts, South West.

2. Briefly stated, the facts of the present case, as stated in the complaint dated 22.12.2021 are as under:

i. On 27.06.2021, officers of Customs, IGI Airport, New Delhi intercepted two accused persons namely, Sydney John-Brain O. Grady and Quentin Decon, i.e., the present applicant, who are both citizens of the Republic of South Africa, who arrived at the airport by a flight from Doha.

ii. After searching the beige colour checked-in trolley bag having Tag no.0157392647, carried by the present applicant, it was found that the bag contained clothes and old & used personal effects and 05 nos. of paper boxes of BOKOMO WEET-BIX wholegrain wheat Biscuits. It was further noticed that some Off-white coloured powdery substance/granules totally weighing 10000 grams (approx.) were kept inside 10 transparent plastic packets each placed inside white coloured cloth packet having circular stamp in blue colour marked with BLUE SAPHIRE 555 & 999 inside the circular stamp further placed inside one or two (in few cases) outer transparent plastic packet(s). Two such outer transparent plastic packets were further placed inside brown taped plastic packet. 04 such brown taped plastic packets were placed inside 04 paper boxes of BOKOMO WEET-BIX7 wholegrain wheat Biscuits. 02 brown taped plastic packets each containing one above mentioned outer transparent plastic packet were placed inside 01 paper box 1 of BOKOMO WEET-BIX wholegrain wheat Biscuits. The said off-white coloured powdery substance/granules weighing 10000 grams (approx.) recovered from checked-in trolley bag having Tag no. 0157392647 was suspected to be narcotic substance. On the search of the b1ack backpack of the applicant nothing objectionable was found.

iii. That thereafter, the total material recovered from the present applicant i.e., off white coloured powder/granules suspected to be narcotics substance, weighing 10000 grams approx, recovered from beige colour trolley bag having tag no 0157392647 was further kept in a transparent poly bag weighing 27 grams approx, which was further kept in a plastic container weighing 480 grams approx., thus totally weighing 10500 grams approximately.

iv. Representative samples of the recovered substance from both the accused persons were tested with the help of a Modified Narcotic Drugs detection Kit and the said substance tested positive for `Heroin'.

v. In their statements under Section 67 of the NDPS Act, both the accused persons including the applicant admitted to the recovery and agreed with the proceedings as recorded in the panchnama dated 27.06.2021. They admitted to their involvement in illegal trafficking of heroin in commercial quantity. The applicant stated that the contraband that he was carrying was handed over to him by one Mr. John in South Africa and that stated that he had instructions to leave the same in a specified room at Hotel Sarthak Palace, Multani Dhanda, Paharganj, New Delhi and immediately leave the place thereafter.

vi. The applicant and co-accused Sydney John-Brain O. Grady were arrested on 27.06.2021 and have been in judicial custody since then.

vii. The said recovered narcotic substance from both the accused persons found to be Heroin, was seized under the provisions of Section 43 and Section 43(a) the NDPS Act, 1985, read with Section 110 of the Customs Act, 1962 for violation of Section 8, 21,23 & 29 of the NDPS Act, 1985, as these were found to be liable for confiscation under Section 60 of the NDPS, Act, 1985, read with Section 111, 118 and 119 of the Customs Act, 1962, on a reasonable belief that same are brought into India illegall