New Delhi, May 18 The Delhi High Court on Thursday ruled that the application for drawing a sample of narcotic drugs or psychotropic substances must be made within 72 hours to the Magistrate concerned under Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Justice Jasmeet Singh firmly asserted that the submission of such applications should not be subject to the arbitrary discretion of the Narcotics Control Bureau, which functions as the prosecuting agency.
While acknowledging that the reasonable time for submitting such an application depends on the specific circumstances of each case, the court emphasised that it is not the legislature's intention to allow the prosecuting agency to move the application arbitrarily.
"Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A should be made within 72 hours or near about the said time frame," the court said.
The court noted that Section 52A of the NDPS Act does not specify a specific timeframe for submitting an application to the magistrate for the collection of samples. It further clarified that the timeframe mentioned in Standing Order 1/88 solely pertains to the transportation of the samples to the Forensic Science Laboratory (FSL).
According to the court, the legislative intent behind Section 52A of the NDPS Act is not to grant the respondent authorities the freedom to delay their submission of an application. Although the statute does not specify a time limit, the court emphasised that the application should be filed promptly to prevent any concerns of sample tampering.
"It cannot be the intent of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance," the court said.
Referring to Clause 1.13 of the standing order, it was highlighted that samples should be dispatched to the Forensic Science Laboratory (FSL) within 72 hours of seizure, either through insured post or a duly authorised special messenger, to avoid any potential legal objections.
Justice Singh emphasised the need for a coherent interpretation of Standing Order 1/88 and Section 52A, indicating that a reasonable timeframe should be considered when applying for sample collection and certification before the Magistrate.
These observations were made during the granting of bail to Kashif, who was charged under sections 8, 22(c), 23(c), and 29 of the NDPS Act.
The court concluded that the violation of Section 52A undermines the integrity of the sample collection process, resulting in a benefit of doubt that should be extended to Kashif.
"A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power and possession, is immune from tampering and mischief. Furthermore, no reasons have been furnished by the Respondent for the delay of 51 days for moving an application under section 52A NDPS," the court said.
"I hold that violation of Section 52A vitiates the sample collection procedure and the benefit of the same must accrue to the applicant. The application by the respondent under section 52A was filed after a delay of 51 days. At that time, the applicant did not object. However, the same being a legal objection can be raised at any stage," Justice Singh said.
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