IN THE COURT OF SANJEEV KUMAR-ll,

SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,

TIS HAZARICOURTS, NEW DELHI
Bail Application No.296/2023 (Sh. Sunjcey lanet
D2,
Session Case No. 547/2019 SpecialJudge,(NIDPS),-
Roon 222,
No,
State v. Nihaluddin CentralDistrict,Court
Courts, Delhi
Tis Hazari

05.08.2023

Present: Dr. Sarita Rani, Additional Public Prosecutor

for State.

Ms. Shushma Sharma, counsel for accused

applicant.

the Code of
This is an application under section 439 of
Criminal Procedure, 1973 moved on behalf of accused-applicant
registered
Nihaluddin for grant of bail in case FIR No. 39/2019
Sections 21 (c) of the
at Police Station, Crime Branch under
Act, 1985 (NDPS
Narcotic Drugs and Psychotropic Substances
Act' in short).

for the
2. Ms. Shushma Sharma, learned counsel appearing
proceedings under
accused has contended that in the present case,
learned Magistrate had
section 52A of the NDPS Act before the
required to be conducted
not been conducted whereas same was
Hon'ble Supreme
and same has been held to be mandatory by the
3 SCC379;
Court in Union of India v. Mohanlal & Anr., (2016)
1443
Simranjeet Singh v. State of Punjab, Criminal appeal No.
09.05.2023; Bothilal
of 2023, Hon'ble Supreme Court on dated
Control Bureau, Criminal
FY Fheintelligence Officer Narcotics
Appea no.451 of 2011, decided by Hon'ble Supreme Court of
B. A. Nu. 296/2023 FIR No.39/2019 PS: Crime Branch State v. Nillaluddin
 aw
s it

Control Bureau, 2023 Te

India on 26.04.2023: Kashif v. Narcotics
Appln
SCG OnLine Del 2881: Amina v. State of NCT, Bail
3805/2022 decided on 02.06.2023 by Hon'ble High Court of
Delhi.

3. Learned counsel for accused-applicant further contended

that accused-applicant is in custody for the last four years and six
months and out of 13 witnesses only three witnesses have been
examined till date. In this regard. Learned counsel has referred to
decision inMohd. Muslim @Hussain v. State (NCT of Delhi),
SLP (Crl.) No.915 of 2021 decided by Hon'ble Supreme Court on
28.03.2023 and Deep Raj @ Neetu v. State of Himachal
Pradesh, Crl. MP (M) No.2822 of 2022 and Rabi Prakash v.
The State of Odisha, Special Leave to Appeal (Crl.)
No.4169/2023 decided by Hon'ble Supreme Court of India on
13.07.2023.

4. Learned counsel further submitsthat bail application filed

before the Hon'ble High Court was dismissed as withdrawn on
31.07.2023 and no bail application of the accused-applicant is
pending before the Hon'ble High Court or Hon'ble Supreme
Court.

5. On the other hand, learned Additional Public Prosecutor

for the State opposed the bail application stating that the case
pertains to the recovery of commercial quantity of contraband i.e.

300 grams of heroin and bar of Section 37 of NDPS Act attra

DtO thepresent case.

FIR No..39/2019
PS: Crime Branch State v. Nilaluddi
B, A. No296/2023
pln 023 6.
Bail application
of the
before the Hon'ble High Court ofaccused-applicant was moved
Delhi but same was dismissed
as withdrawn on
31.07.2023. coDy of the said order is on placed
record.

7.
The case of the
On
prosecution is that on 20.02.2019, acting
Secretinformation, accused-applicant Nihaluddin
apprehended and 300 grams of was
heroin was recovered from the
bag being carried by him.
Two samples of 5-5 grams
each
the recovered
contraband were drawn at the spot by the I0. from
8.
There are allegations of
21 (c) of the
NDPS Act involving
committing offence under section
37 of the NDPS Act commercial quantity. Section
regulates the grant of bail in cases
offences under the NDPS Act. The twin involving
clause (b) of conditions specified in
sub-section (1) of section 37 of the NDPS Act are
required to be satisfied for granting bail.
on granting of bail Further, the limitations
specified said clause (b) of
in
are in addition to the sub-section (1)
limitations under the Code of Criminal
Procedure, 1973 (in short 'CrPC'). Section 37 reads as
"37. Offences to be under:
cognizable and non-bailable.
(1)
Notwithstanding 1974), contained in the Code of Criminal
Procedure, 1973 (2 ofanything
(a) every offence
punishable under this Act shal be cognizable:
(b) no person accused of an
under section 19 or section 24offence punishable for
or section 27A and offences
offences involving commercial quantity shall be releasedalso
on
for
bail
or on his own bond unless
(i) the Public Prosecutor has been
given an
oppose the application for such release, and opportunity to
Ar&-NOPo where the Public Prosecutor opposes the
tNe court is satisfied that there are reasonable application,
grounds for
be<ieving that he is not guilty of such offence and that he is

B.A. No. 296/2023 FIR No.39/2019 PS: Crinne Branch State v. Nilaluddin
 while onbail.
any offence of
not likely to
commit
specified in clause (b)
Code
of bail the
limitations on granting the limitations under for the
(2)The addition to any otherlaw
SUb-section (1)are in 1973(2 of 1974), or
Procedure,
of Criminal force on granting of bail."
time being in
under:-
observed/held as
it has been
9. In Bothilal (supra), samples from each of the
PW-2 drew two room and kept
"15. Admittedly,
contraband found in the
hotel
were
packets of the These cOvers
separate plastic covers. sealed.
them in two was also
remaining contraband samples were
sealed and the claims that the to the Station
prosecution
Thus, the before the packets were
sent
senior
prepared even submission of the learned
House Officer. The Criminal Appeal
appearing for the appellant in created about the
counsel is
a grave suspicion PW-2, was contrary
451of 2011 was that action by the
prosecution's case as this
NDPS Act.
to Section 52-A of
case, it was
paragraphs 15 to 17 of the Mohanlal's
16. In
held thus:
Section 52-A(2) include
"15. It is manifest from same
the contraband the
(supra) that upon seizure of officer-in-charge of
the
has to be forwarded either to the officer empOwered
the nearest police station or to an inventory as
under Section 53 who shall prepare make an
stipulated in the said provision and
of (a)
application to the Magistrate for purposes (b)
certifying the correctness of the inventory,
substances
certifying photographs of such drugs or draw
taken before the Magistrate as true, and (c) to
the
representative samples in the presence of
Magistrate and certifying the correctness of the list
of samples so drawn.

16, Sub-section (3) of Section 52-A requires that

the Magistrate shall as soon as may be allow the
application. This implies that no sooner the
seizure is effected and the contraband forwarded
tothe officer-in-charge of the police station or the
officer empowered, the officer concerned is in law
duty-bound to approach the Magistrate for the
purposes mentioned ab0ve including grant of
permission to draw representative samples in his
presence,which samples will then be enlisted and
the correctnesS of the list of samples so
drawn
certified by the Magistrate. In other words,
process of drawing of samples has the
to be in the
BA NA96/2023 FIR No,39/209 PS: Crime Branch
State v. Nilaluldin
 presence and
Magistrateby and under the
the entire supervision of the
certified him to be correct. exercise has to be
17. The question of
time of seizure which,drawing of samples at the
place in the absence of more often than not,takes
the Magistrate
the above
scheme of things arise. does not in
especially when according to Section
Act, samples drawn
This is so
in
52-A(4)
and certified by the of the
compliance
Section 52-A
with sub-sections (2) Magistrate
and (3) of
above
the purpose of the constitute primary
no trial.
in the ActSuffice
it evidence for
to say that there is
provision that mandates
samples at the time of seizure. That taking of
none of the States claim to is perhaps why
time of seizure. be taking
samples at the
Thus, the act of PW-2 of (emphasis added)
packets at the time of drawing
what is seizure is notsamples
held by this Court in the in
from all the
Creates a case of conformity with
the serious
substance doubt about the Mohanlal. This
prosecution's
recovered was contraband." case that
10.
In
Simranjeet
Court has taken theSingh (supra) also Hon'ble Supreme
similar view in respect of
compliance Section 52A of NDPS Act on
of non
it is held as
under in para no. 7,9and
10:
09.05.2023 and
7.We have perused the
in which he has evidence of PW-7 Hardeep Singh
stated that
husk, tWo samples from eight bags of
of 250 gms the
converted poppy
into 16 parcels. This haseach were drawn and
after the seizure. been done
immediately
XXXX
XXXXX
XXXX
9. Hence, the act of
packets at the time PW-7 of drawing samples
seizure from all the
law laid down by this Court isin not in conformity with the
the case of
creates a serious doubt about the Mohanlal. This
substance recovered was a contraband. prosecution's case that
10. Hence, the case of the
nPS-0 prosecution is not free from
suspicion and the same has not been
reasonable doubt. Accordingly, we setestablished beyond a
aside the impugned

B. A. N296/2023 FIRNo.39/2019 PS: Crime Branch Stute v. Nilluluddim

 concerned
appellant is
present
insofar as the sentence."
judgments conviction and
his
dnd quash
Pradesh, 2023
Madhya
of on
11. In Mangilal v.
The State
Court of India
Hon'ble Supreme
INSC 634, decided by
under:
12.07.2023, it has been held as NDPS Act
Section 52A of the inventory of
"5. Sub-section (2) of officer to prepare an has to
mandates a competent adequate particulars. This the
to
such narcotic drugs with appropriate application
be followed through an the purpose of certifying the
Magistrate concerned for taking relevant photographs 1n
Correctness of inventory, drawal
them as true or taking
his presence and certifyingwith due certification. Such an
presence
of samples in his filed for anvone of the aforesaid three
application can be this provision is to
have an
objective behind disposal
purposes. The
the magistrate over the
element of supervision by inventories, photographs and
Such
of seized contraband. with certification by Magistrates
list of samples drawn
evidence. Therefore, when
would constitute as a primary Section 52A of the NDPS
Act,
there is non-conpliance of magistrate is lacking any
where a certification of a samples would not
inventory, photograph or list of
constitute primary evidence.

provision is to inject fair

6. The obvious reason behind this
investigation. Section 52A of the
play in the process of which requires
NDPS Act is a mandatory rule of evidence
followed by an order
the physical presence of a Magistrate an inventory
facilitating his approval either for certifying
of samples drawn.
or for a photograph taken apart from list
the NDPS Act the
In due compliance of Section 52A(1) ofRevenue) issued a
Ministry of Finance (Department of
which
Notification No. G.S.R. 339(E) dated 10.05.2007
furnishes an exhaustive manner and mode of disposal of
destruction:
drugs ending with a certificate of
"4. Manner of disposal
1) Where any narcotic drug or psychotropic substances
has been seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered
under section 53, of the Act, or if it is seized by such an
officer himself, he shall prepare an inventory of such
narcotic drugs or psychotropic substances as per
Annexure 1 to this notification and apply to any
Magistrate under sub-section (2) of section 52A as Der
Annexure 2 to this notification.
2) After the Magistrate allows the application under sub
section (3) of section 52A, the officer mentioned in

FIR No.39/2019 PS: Crime Branch State v. Nillaludlin

B. A. No. 296/2023
 clause (1) above shall preserve the certified inventory,
photographs and samples drawn in the presence of the
Magistrate as primary evidence for the case and submit
details of the drug consignments to the Chairman of the
Drug Disposal Committee for a decision by the
committee on the disposal. The officer shall send a copy
of the details along with the drug consignments to the
officer-in-charge of the godown.
XXX XXX XXX
4.2 Mode of disposal of drugs.
() Opium, morphine, codeine and thebaine shall be
disposed of by transferring to the Government Opium and
Alkaloid Works under the Chief Controller of Factories.
(i) In case of drugs other than the drugs mentioned in
clause (i), the Chief Controller of Factories shall be
intimated by the fastest means of communication
available, details of drug consignments that are ready for
disposal.
(iii) The Chief Controller of Factories shall indicate
within 15 days of the date of receipt of the
communication, the quantities of drugs, if any, that are
required by him to supply as samples under Rule 67B.
(iv) Such quantities of drugs, if any, as required by the
Chief Controller of Factories under clause (ii) shall be
transferred to him and the remaining quantities of drugs
shall be destroyed as per the procedure outlined in para
4.1.2.
(v) Destruction shall be by incineration in incinerators
fitted with appropriate air pollution control devices,
which comply with emission standards. Such incineration
may only be done in places where adequate facilities and
security arrangements exist. In order to ensure that such
incineration may not be a health hazard or polluting,
consent of the State Pollution Control Board or Pollution
Control Committee, as the case may be, should be
obtained. Destruction shall be carried out at the presence
of the Members of the Drug Disposal Committee.
XXX XXX XXX
4.4 Certificate of destruction.
Acertificate of destruction (in triplicate) containing all
the relevant data like godownentry number, gross and net
weight of the drugs seized, etc., shall be prepared and
signed by the chairman and members of the Drug
Disposal Committee as per format at Annexure 3. The
original copy shall be pasted in the godown register after
making necessary entries to this effect, the duplicate to be
retained in the seizure case file and the triplicate copy
will be kept by the Drug Disposal Committee. Details of
disposal of drugs shall be reported to the Narcotics
Conrol Bureau in the Monthly Master Reports. "

7 To be noted, the aforesaid notification was in existence

the time of the commission of the offence alleged in the
OPS-02 ke on band, stood repealed with effect from 23.12.2022

FIR No.39/2019 PS: Crime Branch State v. Nilaluddin 7

296/2023
, B. A. No,
 man

Se

case
Vide Notification No. G.S.R.899(E). In any conterred
powers
notification issued in derogation of the
of the NDPS Act can
under sub-section(1) ofSection 52A particularly Sub
never contradict the main provision,
issued by way of a
Section (2). However, any guideline 52A of the NDPS
notification in consonance with Section
Act has to be followed mandatorily.

(supra), Bothilal
12. Hence, in case of Simranjeet Singh
drawing samples at
(Supra) Hon'ble Supreme Court held that if
the law laid down in
the time of seizure is not in conformity with
serious doubt about
the case of Mohanlal (supra), this create a
recovered was a contraband.
ne prosecution's case that substance
conviction and
The Hon'ble Supreme Court has quashed the
sentence of the accused in Simranjeet Singh (supra) solely on
52A NDPS Act
the ground of non-compliance of Section
free from
observing further that the case of prosecution is not
beyond
suspicion and the same has not been established
reasonable doubt. In Mangilal (supra), Hon'ble Supreme Court
rule of
held that Section 52A of the NDPS Act is a mandatory
evidence which requires the physical presence of a Magistrate
followed by an order facilitating hisapproval either of certifying
of samples
an inventory or for aphotograph taken apart from list
drawn.

13. Hon'ble Delhi High Court in case of Kashif (supra) was of

the view that the compliance of Section 52A is mandatory and
cannot be delayed or ignored. Further Hon'ble Delhi High Court
in case of Amina (supra), relying of Kashif (supra) held that the
sampling are to be done in compliance of Section 52A and not at
thetime of seizure. It is held in para no.28, as under:

296/202:3 FIR No.39/2019 PS: Crime Branch

B. A. No. State v. Nilhaluddiu
 "28, As a
post the decision inside-wind, it is worth mentioning that
also veered towads Mohanlal (supra), the discussion has
whether the samnpling has to be done
mandatorily before the Magistratea compliance of
Section 52A NDPS Act. Recently, in
this Court in Kashif v. Coordinate Bench of
Narcotics Control
SCCOnLine Del 2881 while Bureau, 2023
has taken the view that the aranting relief to the accused
mandatory compliance
and cannot be delayed or
of Section 52A is
there is a recent
Standing Order
ignored. Moreover,
December 2022 by the Ministry of Finance issued dated 23d
powers conferred by Section 76 r/w in exercise of
Act wherein Section 52 A of NDPS
procedure for seizure and
material and sampling and disposal has storage of seized
detail and which been
the magistrate. directs sampling to be done provided
in
in
out to be done in Therefore, as per this view, the front of
compliance of sampling
time of seizure.
the discussion However, this Section 52A and at the
has not been the not
scope of
learned counselsduring the arquments
in this matter addressed by the
deliberatedto, inis detail. The only and therefore is not being
purpose why is being
adverted to
were drawn at theemphasize that in this case this
time of seizure and that the samples
compliance with the Standing Orders. too not in
14. In the
present case also samples were
seizure of the drawn at the time of
not drawn in
contraband by the
Investigating Officer and were
presence of a magistrate under Section
NDPS Act. No 52A of
proceedings under Section 52A of NDPS
Act
were conducted. Mohan Lal (supra) wherein
Court has observed that Hon'ble Supreme
Act will be conducted
proceedings under Section 52A of NDPS
before the learned Magistrate, was
on dated passed
28.01.2016. In the present case
recovered on 20.02.20119, therefore this case wascontraband was
about three years of the case of Mohan Lal
registered after
(supra), even though
proceedings under Section 52A of NDPS Act was not done.

15. In Rabi Prakash (supra), Hon'ble Supreme Court

iiheldobserved in respect of prolonged incarceration, as follows:

FIR No.39/2019
B.A No PS: Crime Branch Stute v. Nilaluddin
 groutnod

requ

4. As regard to the twin conditions contained in

Section 37 of the NDPS Act, learned counsel for the
respondent - State has been duly heard. Thus, the 1st
condition stands complied with. So far as the 2nd
Condition re: formation of opinion as to whether there are
reasonable grounds to believe that the petitioner is not
guiity, the same may not be formed at this stage when he
nas already spent more than three and a half years in
Custody. The prolonged incarceration, generally militates
against the most precious fundamental right guaranteed
under Article 21 of the Constitution and in such a
situation, the conditional liberty must override the
statutory embargo created under Section 37 (1)(b)(ii) of
the NDPS Act."

16.
Hence, as per Rabi Prakash (supra), formation of
as to whether there are
opinion
reasonable grounds to believe that the
accused-petitioner is not
guilty, the same may not be formed at
this stage when he has already
spent more than three and a half
years in custody; that the
prolonged incarceration, generally
militates against the most precious
under Article 21 of the fundamental right guaranteed
Constitution and in such a situation, the
conditional liberty must override the statutory
under Section 37 (1)(b)(ii) of the embargo created
NDPS Act. Further, Hon'ble
Delhi High Court in case of
Soleto Justniano Fernando Tito y.
Narcotics Control Bureau, Bail Appln.
26.07.2023, it has been observed that most850/2023 decided On
Apex Court in case of Rabi recently, the Hon'ble
that bar under Section 37 of
Prakash (supra) has again reiterated
NDPS Act would not come in way of
grant of bail to
under-trials in cases of prolonged
incarceration.
17. It is admitted that
other case under NDPS Act.
accused-applicant
In
is not involved
in any
case, the present
accused is in custody since 21.02.2019 and
therefore he
applicant-
in custody for more than four years. In of view
remained
Rabi Prakash
B. A-No,296/2023 FIR No.39/2019 PS: Crime Branch Stute v. Niluluddin
 (supra) formation of opinion as to whether there are reasonabIe
grounds to believe that the accused is not guilty, the same IS not
required to be formed in the prolonged incarceration and turther
prolonged incarceration, generally militates against the most
precious fundamental right guaranteed under Article 21 of the
Constitution and in such a situation. the conditional liberty must
Override the statutory embargo created under Section 37
(1)(b)(1i)
of the NDPS Act. Keeping in view
the more than four years
incarceration of accused-applicant, the conditional liberty must
override the statutory embargo created under Section 37
of the NDPS Act as held in Rabi
(1)(b)(i)
Prakash (supra). Even then this
court is of the view that there are
reasonable grounds for
believing that the accused-applicant Nihaluddin is not
the offence as alleged and that guilty of
he is not likely to
offence while on bail. Hence the twin commit any
37 of NDPS ACt are
conditions under Section
satisfied. Hence, I am inclined to grant
bail to the
accused-applicant Nihaluddin on
personal bond in the sum of Rs.20,000/- with one furnishing
surety in the
like amnount andsubject to the
following conditions that:
i) That accused-applicant shall not,
directly or
indirectly, make any inducement, threat or promise to any
person
acquainted with the factsS of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer:
ii) That accused-applicant shall not leave India
without
the previous permission of the Court; and
iii) That accused-applicant shall not commit an offence
similar to the offence of which he is accused.
wAApplication stands disposed of.

B. A. No. 296/2023 FIR No.39/2019 PS: Crimne Branch Stute v. Nillutuddin

 given dasti to learncd counsel for
18. Copy of order be
accused-applicant in
accused-applicant and be communicated to

Jail also through Jail Superintendent.

Sd
(Sanjeev Kumar-II)
SpecialJudge (NDPS)-02
Courts,
Central District, Tis Hazari
Delhi /05.08.2023
2 (i

B. A. No. 296/2023 FIR No..19/2019 P'S: Crime Branh State v. Nillaluddin 12