Delhi High Court: In a case wherein an application was filed seeking regular suspension of sentence of 10 years rigorous imprisonment with a fine of Rs. 1 lakhs for the offence punishable under Sections 22(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), a Single Judge Bench of Anish Dayal, J.*, noted that there had been alleged “non-compliance” of Standing Orders of the Narcotics Control Bureau (‘NCB’) on the “manner of sampling of narcotics” and thus, suspended the 10-year sentence of a Zimbabwean lady, who had already undergone around five years in custody.
In the present case, after some secret information was received, a NCB team was constituted which apprehended the appellant, a Zimbabwean lady, on 2-4-2018, at the IGI Airport, New Delhi, who was going to board a flight and on search of her baggage, two polyethene were recovered in each cavities containing 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. After the testing, the contraband was mixed and transferred into a transparent polythene and the total weight was 3 kgs. Two samples of 5 gms each were taken from the mixed substance, thereafter, the appellant’s statement under Section 67 of the NDPS Act was recorded. Further, the Central Revenue Control Laboratory (‘CRCL’) report confirmed the crystalline substance to be Methamphetamine.
Analysis, Law, and Decision
The Court opined that the issue of improper sampling would have to be considered carefully at the time of adjudication of the appeal since prima facie it seemed from the record that the results of two samples drawn were not completely placed on record. The Court noted that separate sampling as per the Standing Order was not done even though there was evidently a mix of both the packets which were seized.
The Court noted that the manner of drawing a sample of narcotics had been laid down in Standing Order 1/88 dated 15-3-1988 issued by the Narcotics Control Bureau and the Standing Order 1/89 dated 1-06-1989, was pari materia with Standing Order No. 1/88, issued by the Department of Revenue, Ministry of Finance, Government of India.
The Court relied on Basant Rai v. State, 2012 SCC OnLine Del 3319, wherein it was observed that “if the eight packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest six packets did not have any contraband; though all might be of the same colour, when we mix the substances of all eight packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. Its quantity did not matter. Proper procedure had to be followed, without that the results would be negative”. The Court further relied on Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128, wherein this Court acquitted the accused observing that the instructions contained in Standing Order No. 1/89 were not followed, and it was further observed that the “entire purpose of drawing a sample and testing the same was to establish the composition of the substance from which the sample was drawn. Keeping this object in view, it must be ensured that the sample was a true representative of the substance recovered, before it could be assumed that the composition of the sample was the same as that of the recovered substances”.
The Court also relied on Laxman Thakur v. State (NCT of Delhi), 2022 SCC OnLine Del 4427, wherein it was held that “the Standing Order 1/88 mandated that the transferring of content of all packets into one and then drawing a sample from the mixture was not permitted”. The Court further relied on Union of India v. Mohanlal, (2016) 3 SCC 379, wherein the apparent conflict in the manner of drawing a sample as provided in Section 52-A(2)(c) of NDPS Act and the Standing Order 1/89 was considered and it was held that “no sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances was effected, the same should be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the NDPS Act. The officer concerned should then approach the Magistrate with an application under Section 52-A(2) of the NDPS Act, which should be allowed by the Magistrate as soon as may be required under Section 52-A(3) of the NDPS Act, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’”.
The Court opined that the Standing Orders must serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and could not be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders were based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper. The Court further opined that the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders might naturally invoke a reasonable doubt relating to the process of sampling which was the most critical procedure to be carried out to ascertain the nature of the substance and its quantity.
The Court observed that the Supreme Court had often reemphasized that the provisions of the NDPS Act were stringent in nature and provided twin conditions as a threshold for granting bail under Section 37 of the NDPS Act, compliance by the investigating agencies must be necessarily precise and not ad hoc or half-hearted or truncated in nature. The Court opined that the lack of compliance of these provisions necessarily imported an element of “doubt”, moreover a “reasonable doubt”.
The Court observed that besides the fact that the appellant might have a case to argue on the issue of defective sampling at the time of seizure, the appellant had also undergone a substantial period of sentence, that is, 4 years, 11 months and 18 days in custody and the appeal was likely to take some time for hearing. The Court relied on Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259, where the Supreme Court had stated that “in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone could be the basis for grant of bail”. Thus, this Court deemed it fit to suspend the sentence of the appellant. The Court directed that the appellant’s sentence be suspended pending the appeal’s hearing.
[Betty Rame v. Narcotics Control Bureau, 2023 SCC OnLine Del 3279, decided on 30-5-2023]
*Judgment authored by: Justice Anish Dayal
Advocates who appeared in this case :
For the Appellant: Shiv Chopra, Aadhyaa Khanna, Siddharth Arora, Nikhil Srivastava, Advocates;
For the Respondent: Sunil Kumar, Advocate.