* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 12^th August, 2024 Pronounced on: 11^th September, 2024 + BAIL APPLN. 2358/2024 RAM KISHAN .....Applicant Through: Mr. Rahul Sharma, Mr. Kshitij Goel, Mr. Gyan Ranjan Kashiap, Mr. Deepak Ghai, Mr. S. K. Sharma, Mr. Atul Sharma and Ms. Shambhavi Mishra, Advocates.

versus STATE NCT OF DELHI .....Respondent Through: Mr. Amit Ahlawat, APP for State alongwith SI Sanjeev Kumar, ANTF/Crime Branch.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

ANISH DAYAL, J.

1. This application has been filed seeking regular bail in FIR No.131/2016, PS Crime Branch, under Section 20 of the Narcotic Drugs and Psychotropic Substance Act (‘NDPS Act’). As per the case of prosecution, on the basis of Signature Not Verified Digitally Signed secret information, the applicant was raided and was apprehended with 1.5 kg of charas.

2. The said raid was conducted near Ghata Masjid Road, Daryaganj between 8:30 P.M. and 9:00 P.M., on 22^nd July, 2016 at 7:00 P.M. Apprehension was made at about 9:00 P.M. Upon seizure, applicant was explained the meaning of Gazetted Officer/Magistrate in local language. A notice under Section 50 of the NDPS Act was prepared but he refused to have a formal search conducted before a Gazetted Officer/Magistrate. Accordingly, a formal search was conducted by ASI Sudhir during which a green-coloured carry bag was recovered from his hand. The bag had black polythene containing black colour material which is found to be 1.5 kg charas. Two samples of 50-50 gms each were taken and pulandas were prepared, an FIR was registered. FSL result was obtained reporting the substance seized as charas (cannabis). Charge sheet was filed and prosecution witnesses are being examined.

3. Counsel for applicant contends, in support of bail application, that on the basis of the charge sheet, it transpires that no proceeding under Section 52A of the NDPS Act was done before the Magistrate. Moreover, the applicant has been in custody for last 8 years and the trial is still in progress. Moreover, there were no independent witnesses available at the stage of the seizure. He relies on a decision of the Supreme Court in Yusuf @ Asif v. State 2023 SCC OnLine SC 1328 related to the possession of a commercial quantity of 20 kg of heroin from accused,where in an appeal against the conviction affirmed by the High Court, Supreme Court held that a reading of Section 52A of the NDPS Act Signature Not Verified Digitally Signed revealed that when any contraband/narcotic substance was seized and forwarded to the police or the officer mentioned under Section 53 of the NDPS Act, such officer should prepare an inventory list which includes details and description of the seized substance like quality, quantity, mode of packaging, numbering and identifying marks, and then make an application to any Magistrate for the purpose of certifying its correctness and for allowing to draw representative's samples, in the presence of the Magistrate.

4. Noting that no evidence has been brought on record to that effect the procedure prescribed under Section 52A of the NDPS Act had been followed while making seizure and drawing samples, the Supreme Court in relying upon Union of India v. Mohan Lal & Ors. 2016 SCC OnLine SC 88 concluded that the seized contraband and samples drawn would not be a valid piece of primary evidence in the trial and the trial would stand vitiated.

5. The relevant extracts from Yusuf @ Asif (supra) are as under:

“14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraban