IMPORTANT POINT
Strict compliance with procedural requirements under the NDPS Act is essential for the validity of the trial, particularly regarding the sampling and certification of seized contraband.

ORDER :

(Pankaj Purohit, J.) :

The appellant-Mohammand Khurshid, S/o Sri Saffudin is in judicial custody on his conviction under Section 8(c) r/w 21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) vide judgment and order dated 30.08.2022, passed by Special Judge, NDPS, Dehradun in Special Sessions Trial No.192 of 2020, whereby the appellant was sentenced to undergo 15 years’ R.I. with a fine of Rs.1,00,000/- with default stipulation of six months’ R.I.

2. As per the case of the prosecution, on information, received by the police party on 04.09.2019, S.I.-Sri Navneet Bhandari along with other police personnel intercepted a bus of Himachal Roadways bearing Registration No.HP06A 5221 at Nanda ki Chowki Bridge in Dehradun and one person sitting on the back side of the bus wearing a yellow shirt was interrogated, who tried to run from the place, but he was checked by the police party. On asking, he disclosed his name as Khurshid, S/o Saffuddin, R/o Village Raiya Nagla, P.S. MirGanj, District Bareilly, aged about 40 years and told the police that he was going to Ponta Sahib to deliver the contraband; he was informed by S.I.-Navneet Bhandari about his right to be searched in the presence of a Gazetted Officer and on his consent having been given at about 01:15 a.m., the CO City-Shekhar Chand Suyal was called on the spot and in his presence 610 gms. smack was recovered from him, which was kept in a pink plastic bag (Panni). The recovered contraband was sealed and kept in white clothes and a consent letter was also taken from the appellant by C.O. City-Shekhar Chand Suyal. The recovery memo was prepared; the recovered contraband and other articles i.e. mobile phone and a sum of Rs.1,800/- were recovered from the appellant and accordingly, the first information report was lodged against the appellant.

3. Learned counsel for the appellant would press the bail application today as the objection, called upon from the State is already on record.

4. Learned counsel for the appellant submits that the provisions which are mandatory keeping in view the draconian nature of the NDPS Act have not been complied with by the prosecution, therefore, the conviction and sentence imposed upon the appellant is bad and he is entitled to be released on bail.

5. The main thrust of the argument of the learned counsel for the appellant is about non-compliance of Section 52A (2) of the Act. He further submits that since the samples have not been taken in the manner as prescribed under Section 52A (2) of the Act; when the very process of taking the sample is in violation of the expressed provisions of Section 52A (2) of the Act, therefore, the benefit would go in favour of the appellant and he is entitled to be released on bail. He further submits that the appellant has already undergone almost three years out of the sentence imposed upon him and is in custody since the date of judgment and order i.e. 30.08.2022 continuously.

6. Per contra, learned Deputy Advocate General tried to convince the Court that the provisions of Section 52A (2) of the Act have been complied with.

7. Both the learned counsel for the appellant as well as the learned State Counsel relied upon the various judgments of the Hon’ble Apex Court to substantiate their respective arguments.

8. In order to appreciate the arguments and submissions made by learned counsel for the parties, a deeper scrutiny of Section 52A of the Act is required, which is quoted hereinbelow:-

“[52A. Disposal of seized narcotic drugs and psychotropic substances.-[(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or cl