CASE ANALYSIS –   Narcotics Control Bureau vs Kashif 2024 INSC 1045

CITATION	2024 INSC 1045
DATE	20 DECEMBER, 2024
COURT NAME	SUPREME COURT OF INDIA
PLAINTIFF/APPELLANT/PETITIONER	Narcotics Control Bureau
DEFENDANT/RESPONDENT	Kashif
JUDGES	Bela M. Trivedi, J.

FACTS OF THE CASE 

1.  On February 24, 2022, a package was intercepted at DHL Express in Kirti Nagar, New Delhi, which led to the dispute. A consignment (AWB No. 7702909491) may contain psychotropic substances, according to information provided to a Junior Intelligence Officer of the Narcotics Control Bureau (NCB). An NCB team and an impartial witness opened the package at approximately 3:40 p.m. Three articles of clothing and eleven lace rolls were found inside; one roll contained 120 tramadol strips (10 tablets per strip). The same day, 13,200 tramadol strips were confiscated, immediately sealed, and placed in the Malkhana.

2.  Following investigations, the shipment was linked to Ganesh Chaudhary, an accused individual, and a company called OGS Groups. After being arrested on February 28, 2022, Chaudhary revealed information that resulted in a second seizure at Terminal 3 of IGI Airport (Consignment No. IZ98X1W70451682510), where 15,000 zolpidem tablets were found. Based on his additional disclosure, officers confiscated 19,440 more tramadol tablets from three packages at Global India Express Pvt. Ltd. that were headed for the United States on March 2, 2022. On that day, these items were also sealed and dispatched to the Malkhana.

3.  Co-accused Tamir Ali named Kashif and three other associates as members of the network that shipped narcotic tablets overseas on March 6, 2022. When Kashif was arrested on March 7, he acknowledged in his recorded statement that he had arranged for a bus conductor to deliver the package. The NCB then brought a complaint against Kashif and six other people before the Special Judge, NDPS Act, Patiala House Courts, under Sections 8, 22(c), 23(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
   
   5. Kashif filed a bail petition with the Delhi High Court (BA No. 253/2023). The court granted bail on May 18, 2023, based only on the late filing of the application for a sample drawing under Section 52A, which raised concerns about potential evidence tampering, without improving the mandatory conditions under Section 37 of NDPS Act.

ISSUES RAISED 

1. Whether non-compliance or delayed compliance with Section 52A of the NDPS Act, 1985, relating to the procedure for disposal and sampling of seized narcotic drugs, by itself, justifies the grant of bail to the accused.
2. Whether the High Court, in granting bail to the accused, erred by not recording its satisfaction on the mandatory twin conditions specified in Section 37 of the NDPS Act, 1985, merely because there was a procedural lapse regarding Section 52A.

Judgment

1. The Court categorically ruled that failure to comply with Section 52A of the NDPS Act, 1985 does not automatically invalidate the trial or grant the accused the right to be released on bail. Because of their hazardous nature and susceptibility to theft or substitution, Section 52A was introduced to allow for the early disposal of seized narcotic drugs and psychotropic substances. It does not impose strict deadlines but rather requires reasonable compliance. The Court underlined that the administrative and procedural goals of Section 52A are to protect the integrity of substances that have been seized and to stop their misuse or theft. As a result, errors in procedure, like holding up sampling or sending applications to the magistrate, should be handled as procedural irregularities instead of illegalities.

2. The Court further clarified that such irregularities do not, by themselves, nullify the prosecution’s case or automatically entitle an accused to bail. Instead, the trial court must consider the totality of evidence, including other circumstances and statutory presumptions under Section 54 of the NDPS Act, before arriving at any conclusion. The Supreme Court pointedly criticized the High Court’s approach of granting bail solely on the ground of a 51-day delay in compliance with Section 52A, terming it “highly erroneous and deserving to be quashed and set aside”.

3. The Supreme Court reiterated that Section 37 of the NDPS Act lays down stringent and mandatory conditions for the grant of bail in cases involving commercial quantities of narcotic substances. These conditions require the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offence while on bail. The Court found that the High Court failed to record such mandatory satisfaction and, therefore, its order granting bail was fundamentally flawed.

4. The judgment reinforced that negation of bail is the rule and its grant is the exception in NDPS cases, especially when commercial quantities are involved. The Supreme Court underscored that the legislative intent behind Section 37 is to deter and effectively prosecute offences that are considered a grave threat to society.

5. The Court held that procedural irregularities or even illegalities in the conduct of search, seizure, or sampling do not automatically render the evidence inadmissible. The admissibility of evidence must be assessed in the context of whether any serious prejudice has been caused to the accused. The Court cited established precedents holding that evidence collected in violation of procedural requirements may still be considered, unless it results in manifest injustice or prejudice to the defence.

6. The Supreme Court clarified that delays or lapses in compliance with Section 52A do not override the statutory presumption of guilt under Section 54 of the NDPS Act. The presumption operates unless the accused satisfactorily explains the possession of contraband. Allowing procedural lapses to defeat this presumption would undermine the legislative purpose of the Act and create an anomalous situation not intended by Parliament.

REASONING.

1.  The NDPS Act is comprehensive law designed to combat drug trafficking and misuse, which the Supreme Court stressed is “a crime against society and has to be dealt with iron hands.” The Court relied on Hira Singh v. Union of India to demonstrate that the Act’s intent, purpose, and societal impact must all be taken into consideration while interpreting it literally rather than arbitrarily.

2. . In a crucial distinction, the Court ruled that any detention or division in accordance with Section 52A is merely a procedural irregularity and not an unlawful. Similar irregularities do not grant the accused bail or abate the execution case. “An irregularity can be remedied, an illegality cannot be,” the Court clarified.

3.  The Court underlined that if an indicted person does not adequately account for possession of contraband, Section 54 of the NDPS Act permits courts to presume guilt. By overriding this statutory presumption, a “anomalous situation” would result from holding someone on bail for violating Section 52A, which could not have been the legislative objective.

4.  In Union of India v. Mohanlal, the Supreme Court declared the High Court’s reliance to be “completely lost.” The Court explained that original slice processes were not the main focus of the Mohanlal case; rather, it was about disposing of confiscated goods and preventing theft. The interpretation of the Act by the High Court demonstrated “maximum casualness” with regard to its statutory provisions and precedents.

5. Strict Interpretation of NDPS Act Provisions: The Court underscored that the NDPS Act being a special and stringent legislation aimed at curbing the menace of drug trafficking must be interpreted strictly and not liberally. This stems from its purpose to protect society from the dangers of narcotics. The Court rejected any tendency to relax procedural safeguards in a manner that undermines the Act’s deterrent and preventive objectives.

6.  Distinction Between Procedural Irregularities and Illegality: The court clarified that procedural irregularities, such as delays in filing the application under Section 52A or delayed sampling, are mere irregularities and do not vitiate the evidence or render the trial unfair automatically. In contrast, illegality strikes at the root of the trial and cannot be ignored or remedied without consequences.

7. The Court criticized the High Court’s “maximum casualness” in giving undue weight to the delayed compliance with Section 52A while overlooking the statutory bail conditions. The Court highlighted that indulgence on technical grounds must not come at the cost of public interest in combating drug offences.

8. The Court pointed out that if the accused fails to satisfactorily explain possession of illicit drugs, the statutory presumption of guilt under Section 54 remains intact despite procedural delays or irregularities. Overriding this presumption by granting bail without proper basis would lead to an “anomalous situation” contrary to the Act’s objective.

9. The Court relied on various precedents (such as State of MP vs. Kajad, NCB vs. Mohit Aggarwal, and the earlier Hira Singh case) which affirmed that the NDPS Act’s bail provisions are meant to be applied rigorously, and the accused in heinous drug offenses should not be lightly granted bail.

Conclusion

The Supreme Court overturned the Delhi High Court’s decision to give Kashif bail in light of the following conclusions, concluding that the High Court’s reliance on procedural detainments under Section 52A was no longer valid and went against Section 37’s statutory authorisation. However, in the interest of justice, the Supreme Court did not arbitrarily revoke Kashif’s bail; instead, it remanded the case to the High Court for additional consideration of graces, stating that the bail order would be in effect for four weeks so that the High Court could make a decision quickly.

Therefore, the Supreme Court’s ruling upholds the rigorous and realistic interpretation of the NDPS Act, highlighting the fact that procedural setbacks by themselves are insufficient to master execution or entitlement bail and that the statutory framework must be respected in order to counteract the grave threat that drug trafficking poses to society.

Reference:

1. Supreme Court: Non-Compliance Of Section 52A NDPS Act Not Ground For Bail; Irregular Seizure Won’t Make Evidence Inadmissible, LiveLaw, 20 Dec. 2024. Available at: LiveLaw article on Supreme Court ruling in NCB v. Kashif
2. Narcotic Control Bureau Vs Kashif: Non-Compliance with Section 52A of NDPS Act Not a Basis for Bail; Procedural Irregularities in Seizure Do Not Render Evidence Inadmissible, Advocate Rohit Dandriyal, 20 Dec. 2024. Available at: Advocate Rohit Dandriyal’s analysis of NCB v. Kashif
3. Official Supreme Court judgement repository: https://24law.in/pdf/1735897953_narcotic-control-bureau-vs-kashifpdf

This article is written by Aditya Kushwaha; an Intern under Legal Vidhiya

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