Lack Of Compliance Of Provisions: Delhi HC Suspends 10-Year Sentence Of Zimbabwean Lady In Narcotic Drugs Case

The Delhi High Court has suspended the sentence of 10 years of a Zimbabwean lady in a narcotic drugs case on the ground that there was lack of compliance of provisions of the NDPS Act, 1985 (Narcotic Drugs and Psychotropic Substances Act) necessarily importing an element of doubt.

A Single Bench of Justice Anish Dayal held, “The Hon’ble Supreme Court has often reemphasized that considering the provisions of the NDPS Act are stringent in nature and provide twin conditions as a threshold for granting bail under Section 37 of the Act, compliance by the investigating agencies has to be necessarily precise and not ad hoc or half-hearted or truncated in nature. … The lack of compliance of these provisions necessarily imports an element of “doubt”, moreover a “reasonable doubt”. … this Court deems it fit to suspend the sentence of the appellant.”

The Bench noted that besides the fact that the appellant may have a case to argue on the issue of defective sampling at the time of seizure, she has also undergone a substantial period of sentence and the appeal is likely to take some time for hearing.

Advocate Shiv Chopra appeared on behalf of the appellant/accused while SPP Utkarsh Singh Bains appeared on behalf of the Narcotics Control Bureau (NCB).

Facts of the Case -

An appeal was filed by the accused seeking regular suspension of sentence assailing the judgment of conviction passed by the ASJ, Patiala House Courts. The appellant/accused was convicted and sentenced to rigorous imprisonment for 10 years with a fine of Rs. 1 lakh for the offence punishable under Sections 22(c) and 23(c) of the NDPS Act. The appellant was a 38 years old lady being a citizen of Zimbabwe and had already undergone 4 years, 11 months, and 18 days in custody.

Briefly, the prosecution case was that pursuant to secret information, one NCB team was constituted which apprehended the appellant who was going to board the 9:40 pm IndiGo Flight inbound to Goa, and on a search of her baggage, two polyethene were recovered in each cavities containing a crystalline substance. The colour, texture, and property of material from both concealments were the same and each concealment was tested separately which gave positive results for Methamphetamine and thereafter testing, the contraband was mixed and transferred into transparent polythene and the total weight was 3kg. Two samples of 5gm each were taken from the mixed substance, thereafter, the appellant’s statement under section 67 NDPS Act was recorded. CRCL report dated confirmed the crystalline substance to be Methamphetamine.

The High Court in the above context observed, “From a careful assessment of the decisions cited above and the perusal of the Standing Orders, this Court is of the considered opinion that the Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders are based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper.”

The Court further noted that adherence to a strict process under the NDPS Act has certain important functions and purposes.

“It would therefore not be enough to contend, as is done by the prosecution that issues of non-compliance were to be considered at the time of trial and that what prejudice is caused to the accused, had to be shown by the accused. Even if that may be so, if such non-compliance provides reasonable ground for acquittal of an accused [depending on the nature of the evidence led, as it was in the case of Amani Fidel (supra)], a fortiori at the stage of granting bail, it would be even more important to consider this possibility, even if it is just a possibility”, said the Court.

Accordingly, the Court directed that the sentence of the appellant be suspended pending the hearing of the appeal on furnishing a personal bond of Rs. 1 lakh.

Cause Title- Betty Rame v. Narcotics Control Bureau (Neutral Citation: 2023:DHC:3874)

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