[NDPS Act] Duration Of 51 Days Is Not Reasonable For Submitting Application U/s. 52A For Drawing Of Sample: Delhi HC

Finding that there was a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for fifty-one days and no justification for the delay in filing the application under section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was given, the Delhi High Court granted bail to the accused subject to furnishing of personal bond and surety bond in the sum of Rs. Twenty Five Thousand each.

Referring to an earlier order in Kashif v. Narcotic Controls Bureau [2023: DHC: 3438], wherein this Court had held that ‘the ambiguity between Standing Order 1/88 and Section 52A is to be resolved through a harmonious reading of the two’, the Single Judge Bench of Justice Jasmeet Singh reiterated that “Application under section 52A should be made within reasonable time for certification and drawing of sample”.

Advocate Aditya Aggarwal appeared for the Petitioner, whereas SPP Utsav Singh Bains appeared for the Respondent.

In a brief background of the case, a packet of contraband was seized from the office of DHL Express containing 13,200 strips of Tramadol tablets hidden in 11 lace rolls. In the statement recorded of the accused, he disclosed that he had booked the parcels of NRx tablets to USA on the directions of the Applicant (Tamir Ali and Kashif). NCB team reached Lucknow to arrest the Applicant who was apprehended. The Applicant named three of his associates and said that he packed these drugs into lace rolls and food items. Thereafter, the applicant approached the High Court seeking bail in respect of case registered under section 8/22(c)/23(c)/29 of the NDPS Act. The Applicant’s counsel however, restricted his submissions to violation of Standing Order 1/88 and Section 52A of NDPS Act for delay in making an application to the Magistrate for drawing the sample.

After considering the submission and noting the fact that the collection of a sample and the certification under section 52A of the NDPS Act was made 51 days after the last seizure, the High Court observed that the duration of 51 days cannot be considered a reasonable time period for applying under section 52A NDPS for drawing of sample.

Placing reliance upon the judgment in Rishi Dev @ Onkar Singh v. State [(2008: DHC: 1513) in CRL.A. No. 757/2000] wherein the rationale behind a stringent time frame for sample collection was explained by stating that there is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing, the High Court clarified there was a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days.

Additionally, “the Respondent had failed to provide any justification for the delay of 51 days in filing the application under section 52A”, added the Bench.

Therefore, while stating that there is a violation of section 52A in the present case and the sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period, the Bench concluded that the benefit of the said violation must accrue to the Applicant and granted bail to the accused Applicant.

Cause Title: Tamir Ali v. Narcotics Control Bureau

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