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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE C.S.DIAS
Anuraj - Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor And Ors. – Respondents
BAIL APPL. NO. 5549 OF 2023, BAIL APPL. NO. 5686 OF 2023, BAIL APPL. NO. 5693 OF 2023, BAIL APPL. NO. 5957 OF 2023
Decided On : 21-05-2024
RIGHT TO EXPEDITIOUS TESTING - Narcotic Drugs and Psychotropic Substances Act - Sections 20(b), 20(c), 37, 52A; Rule 14 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 - The court emphasized the right of the accused to seek expeditious testing of seized substances under the NDPS Act, interpreting Rule 14 as mandating chemical laboratories to submit reports within specified timeframes. The court highlighted the importance of timely chemical analysis in determining the nature and quantity of contraband, which directly impacts bail decisions and the accused's rights. The court's decision was influenced by the need for compliance with these timelines to prevent undue prejudice to the accused.
Fact of the Case:
The accused were arrested for possession of 14.84 grams of MDMA, leading to charges under the NDPS Act. They sought bail, and the court directed the state to expedite chemical analysis of the seized substances. Subsequent reports revealed the substance was methamphetamine, not MDMA, and of an intermediate quantity, prompting the court to grant interim bail.
Finding of the Court:
The court found that the delay in chemical analysis reports violated the accused's rights and emphasized the necessity for timely testing as per Rule 14 of the NDPS Rules. The court noted that the initial classification of the substance as MDMA was incorrect, which significantly affected the bail decision.
Issues: Whether the accused have the right to seek expeditious testing of seized drugs under the NDPS Act and the implications of delays in chemical analysis on bail applications.
Ratio Decidendi: The court held that the accused have a right to timely chemical testing as mandated by Rule 14 of the NDPS Rules. Delays in testing cannot be justified by lack of infrastructure, and the state must ensure compliance with the stipulated timelines to protect the rights of the accused.
Final Decision: The court directed the state to ensure compliance with Rule 14 for timely chemical analysis and made the interim bail order absolute, allowing the accused to be released.
ORDER :
THE HONOURABLE MR.JUSTICE C.S.DIAS
Does an accused have the right to seek for the expeditious testing of the seized drugs/substances under the Narcotic Drugs and Psychotropic Substances Act, of 1985?
2. The accused 1 to 4 in Crime No.291/2023 of the Kattoor Police Station, Thrissur, have individually filed these applications under Section 439 of the Code of Criminal Procedure, 1973, to enlarge them on bail. The petitioners were arrested on 6.4.2023.
3. The factual matrix of the prosecution case is that: on 6.4.2023, at around 16.20 hours, 14.84 grams of “MDMA” (methylenedioxy methamphetamine) was seized from the accused 1 to 4 at the residence of the first accused at Pullathara Desom, Karalam Panchayat. The accused were arrested on the spot with the contraband substance and, thereby, they have committed the offences under Sections 20 (b) and 20 (c) of the Narcotic Drugs and Psychotropic Substances Act (in short, ‘NDPS Act’) read with Section 34 of the Indian Penal Code.
4. When the applications came up for consideration on 25.7.2023, this Court, after analysing Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (‘Rules’, for brevity), directed the respondent to file a statement indicating the action taken by the State of Kerala to submit chemical analysis reports of the seized contraband drugs and substances (in short contraband) within the time frame stipulated by the Rules.
5. During the subsequent hearing of the applications on 8.8.2023, it was reported that, as per the chemical analysis report, the contraband allegedly seized from the petitioners is ‘methamphetamine’ and not ‘MDMA’ and is, therefore, of an intermediate quantity as per the Specification of Small and Commercial Quantity of Narcotic Drug or Psychotropic Substance fixed by the Central Government vide. S.O No.1055(E) dated 19.10.2001. Consequently, this Court enlarged the petitioners on interim bail. Nevertheless, the learned Additional Director General of Prosecution was directed to file the statement as ordered on 25.07.2023.
6. Accordingly, on 14.9.2023 the Additional Chief Secretary to the Government of Kerala filed a report, inter alia, stating as follows:
The lack of man power is the major hurdle for speedy disposal of cases including NDPS cases. A comprehensive proposal for creation of 98, including 79 technical posts, in the FSL is under the active consideration of Government. If the above requested posts are sanctioned all the hurdles pertaining to speedy disposal of cases would be settled to a considerable extent.
Since the Hon’ble High Court has expressed huge concern over the delay in examining narcotic cases, the State Police Chief has been requested to examine the possibility of establishing a Lab/converting an existing lab, for the purpose and if necessary, to furnish detailed and comprehensive proposal by incorporating details of the infrastructure facility, total expected expenditure for the project, availability of fund, etc.
In this circumstance, I am to request you to take immediate steps to apprise the above matter before the Hon’ble High Court when the case comes up for hearing.”
(emphasis given).
7. Taking into consideration the seriousness of the issue, this Court directed the Additional Chief Secretary to file an affidavit indicating the time period required to implement the matters mentioned in the report dated 14.9.2023.
8. Pursuant to th
The court ruled that procedural violations in the seizure of narcotics, specifically not following mandatory sampling protocols, can lead to the dilution of bail conditions under the NDPS Act.
The absence of a chemical examination report does not render a bail application incomplete under the NDPS Act; the petitioner must satisfy the twin conditions for bail.
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The main legal point established in the judgment is that failure to complete investigations within the stipulated period entitles the accused to default bail under Section 167(2) of the Cr.P.C.
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The prosecution must prove guilt beyond reasonable doubt, and failure to adhere to mandatory procedures under the NDPS Act undermines the case.
In cases of prolonged detention pending trial, especially with procedural deficiencies, the personal liberty of the accused must be prioritized, warranting the granting of bail.
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