RAM KISHAN Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) This application has been filed seeking regular bail in FIR No.131/2016, PS Crime Branch, under Sec. 20 of the Narcotic Drugs and Psychotropic Substance Act ('NDPS Act'). As per the case of prosecution, on the basis of secret information, the applicant was raided and was apprehended with 1.5 kg of charas.

(2.) The said raid was conducted near Ghata Masjid Road, Daryaganj between 8:30 P.M. and 9:00 P.M., on 22/7/2016 at 7:00 P.M. Apprehension was made at about 9:00 P.M. Upon seizure, applicant was explained the meaning of Gazetted Officer/Magistrate in local language. A notice under Sec. 50 of the NDPS Act was prepared but he refused to have a formal search conducted before a Gazetted Officer/Magistrate. Accordingly, a formal search was conducted by ASI Sudhir during which a green-coloured carry bag was recovered from his hand. The bag had black polythene containing black colour material which is found to be 1.5 kg charas. Two samples of 50-50 gms each were taken and pulandas were prepared, an FIR was registered. FSL result was obtained reporting the substance seized as charas (cannabis). Charge sheet was filed and prosecution witnesses are being examined.

(3.) Counsel for applicant contends, in support of bail application, that on the basis of the charge sheet, it transpires that no proceeding under Sec. 52A of the NDPS Act was done before the Magistrate. Moreover, the applicant has been in custody for last 8 years and the trial is still in progress. Moreover, there were no independent witnesses available at the stage of the seizure. He relies on a decision of the Supreme Court in Yusuf @ Asif v. State 2023 SCC OnLine SC 1328 related to the possession of a commercial quantity of 20 kg of heroin from accused,where in an appeal against the conviction affirmed by the High Court, Supreme Court held that a reading of Sec. 52A of the NDPS Act revealed that when any contraband/narcotic substance was seized and forwarded to the police or the officer mentioned under Sec. 53 of the NDPS Act, such officer should prepare an inventory list which includes details and description of the seized substance like quality, quantity, mode of packaging, numbering and identifying marks, and then make an application to any Magistrate for the purpose of certifying its correctness and for allowing to draw representative's samples, in the presence of the Magistrate.