IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 13.02.2024

BAIL APPLN. 2708/2022

NICHOLAS NZUBE UKAEGBU ….. Petitioner

Through: Mr.Rohan Gupta, Mr.Anoop Kr. Gupta & Ms.Gunjan Gupta, Advs.

versus

NARCOTIC CONTROL BUREAU & ANR. ….. Respondents

Through: Mr.Utsav Singh Bain, SPP with Mr.Prashant Pathak, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)

1.This application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) praying for being released on bail in SC No. 142/2020, titled Nicholas Nzube Ukaegbu v. NCB., emanating from Case no. VIII/07/DZU/2020 registered with Police Station: Narcotics Control Bureau, New Delhi under Sections 8/21/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in
short, ‘NDPS Act’), and pending adjudication before the Court of the learned Special Judge, NDPS Act, Patiala House Courts, New Delhi (hereinafter referred to as the ‘Trial Court’).

2.It is the case of the prosecution that on 29.01.2020, on secret information that two persons are coming near Big Park, Village Amrahi, Section-19, Dwarka, Delhi in a Swift Desire Car for the purpose of purchasing ‘Heroin’ from a Nigeria individual, and that as both the individuals indulge in drug trafficking, a huge quantity of Narcotic drugs was expected to be recovered from their possession, a raiding team was formed. Around 10:20 hours one Swift Desire Car was seen coming near the park and stopped. Two persons were observed in the said car. The Applicant came at the spot on a maroon-coloured
scooty. Thereafter, one Sukhvinder Singh came outside the car and started a conversation with the Applicant, whereas the other occupant- Rajender Kumar, who is stated to be driving the Swift Desire Car, took out a bundle of currency notes from his pocket and gave it to the Applicant. The Applicant handed over one polythene packet to Sukhvinder Singh. It is stated that once the transaction was completed, the raiding team encircled the accused persons. One polythene packet was recovered from the coat of Sukhvinder Singh. It is stated that the said packet was opened and it was found to contain five white-coloured cylindrical shaped capsules and one cut piece of the same type of cylindrical capsule. A little bit of quantity from the total contraband seized was taken from one of the capsules and the same was tested with the help of a ‘Drug Field Test Kit’ and it gave a positive result for ‘Heroin’. Thereafter, the substance of the remaining capsules was also tested individually and found
positive for ‘Heroin’. The total weight of the recovered substance came to be 270 grams. Since the substance of all capsules was found positive for ‘Heroin’, all capsules were crushed and kept in a polythene. Two samples of 5 grams each were drawn and marked A1 and A2, while the polythene
containing the remaining substance was tied with a string and kept with packing material, and covered into a cloth pullanda. The other particulars of the case of the prosecution are not relevant for the purpose of deciding the present application.

3.The learned counsel for the Applicant submits that as the abovementioned samples were not drawn before the Magistrate in terms of Section 52A of the NDPS Act, the same would be a fatal flaw in the case of the prosecution.

4.He further submits that Mr.Anand Kumar, Ex- Investigating Officer, NCDB, DZU, New Delhi was examined as PW-3 before the learned Trial Court. He submits that the PW-3 produced the pullanda allegedly carrying the substance recovered from Sukhvinder Singh, the co-accused. He submits
that the said pullanda was, however, found to be compromised, inasmuch as it could be opened without disturbing the seal as the threads were broken. He submits that, therefore, the original
material/Contraband allegedly recovered from the co-accused also cannot be now verified, casting a grave doubt on the case of the prosecution.

5.On the other hand, the learned SPP for the respondent submits that the flaw in the sampling procedure is a matter that is to be considered by the learned Trial Court at the conclusion
of the trial. He makes the same submission with respect to the alleged comprise of the pullanda which carried the alleged substance/material recovered from the co-accused person.

6.I have considered the submissions made by the learned counsels for the parties.

7.As far as the sampling procedure is concerned, Section 52A of the NDPS Act requires the samples to be drawn only before the Magistrate. It is reproduced hereinunder:“Section 52A. Disposal of seized narcotic drugs and psychotropic substances.-

(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in
respect of any narcotic drugs, psychotropic substances, controlled substances
or conveyances, by notification in the Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from
time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances, controlled substances or
conveyances has been seized and forwarded to the officer-in-charge of the nearest police
station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled
substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs,
psychotropic substances, controlled substances or conveyances or the packing in
which they are packed, country of origin and other particulars as the officer referred to in
sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic
substances, controlled substances or conveyances in any proceedings under this Act
and make an application, to any Magistrate for the purpose of(a) certifying the correctness of the
inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs,
substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and
certifying the correctness of any list of samples so drawn.

(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

8.In Union of India v. Bal Mukund (2009) 12 SCC 161, the Supreme Court has held that where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance with the statutory provisions must be insisted upon by the Courts.

9.Even otherwise, in Yusuf @ Asif v. State, 2023 SCC OnLine SC 1328, the Supreme Court emphasised the mandatory compliance with Section 52A of the NDPS Act by observing as under:“12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the
officer so referred to in sub-section (1) shall prepare its inventory with details and the
description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate
and to certify the correctness of the list of samples so drawn.

13. Notwithstanding the defence set up from the side of the respondent in the instant case,
no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and
the list of the samples so drawn were certified by the Magistrate. The mere fact that the
samples were drawn in the presence of a gazetted officer is not sufficient compliance of
the mandate of sub-section (2) of Section 52A of the NDPS Act.

14. It is an admitted position on record that the samples from the seized substance were
drawn by the police in the presence of the gazetted officer and not in the presence of the
Magistrate. There is no material on record to prove that the Magistrate had certified the
inventory of the substance seized or of the list of samples so drawn.

15. In Mohanlal’s3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would
constitute primary evidence for the purposes of the trial.

16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.” (Emphasis added)

10. In Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498, the Supreme Court reiterated the same as under:“16. In paragraphs 15 to 17 of the Mohanlal’s case, it was held thus: “15. It is manifest from Section 52A(2)include (supra) that upon seizure of the contraband the same
has to be forwarded either to the officer-in-charge of the nearest police station or to the officer
empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and
make an application to the Magistrate for purposes of (a) certifying the correctness of the
inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the 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 to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law dutybound to approach the Magistrate for the purposes mentioned above
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, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with
sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial.
Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of
seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.”
(emphasis added)

17. Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is
not in conformity with what is held by this Court in the case of Mohanlal2. This creates a
serious doubt about the prosecution’s case that the substance recovered was contraband.”
(Emphasis added)

11.In Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906, again, placing reliance on its earlier judgment in Union of India v. Mohanlal, (2016) 3 SCC 379, the Supreme Court reiterated that where the samples were not drawn in conformity with Section 52A of the NDPS Act, it creates a serious doubt on
the prosecution case about the substance recovered to be a contraband.

12.This Court in Sandeep @ Chiku v. State (NCT of Delhi), Neutral Citation No.2024:DHC:528, has held as under: “27. The High Court of Bombay in Mukesh Rajaram Choudhari (supra) has held that noncompliance with the procedure under Section 52A of the NDPS Act cannot mean that the
accused automatically becomes entitled to bail as a matter of right. In my view, however, the non-compliance with the provisions of Section 52A of the NDPS Act would need to be explained by the prosecution at the trial and till then, the cardinal rule that the accused is presumed to be not guilty shall get attracted for holding that “there are reasonable grounds for believing that he is not guilty of
such offence” and that the accused meets the pre-condition for release on bail as prescribed in Section 37 of the Act. It is settled law that when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all. As the manner of sampling has been prescribed in the above two
Standing Orders, non-compliance thereof would give rise to reasonable grounds for believing that the accused is not guilty of the offence alleged against him based on the alleged seizure and sampling.”

13.The statement of PW-3 recorded before the learned Trial Court shows that the original pullanda wherein the alleged recovered material was sealed, has been found to be compromised and could be opened without even disturbing the seal. I may quote from the statement of PW-3 recorded before
the learned Single Judge on 25.02.2023, as under:“At this stage, sealed cloth pullanda Mark A, sealed with the seal of Narcotics Control Bureau- DZU-4 is produced by MHCM NCB. The cloth pullanda is having particulars of the case VIII/7/DZU/2020. The seal is partially broken, the particulars of the
seal i.e. 4 is also not visible, however, pullanda can not be opened without removing the seal, though, the plastic string was attached with the seal and the pullanda was opened even when the string was attached with the seal. At this stage, Ld. defence counsel submitted that he can open the pullanda
without disturbing the seal. Heard and allowed. Ld. Defence Counsel Sh. Anup Gupta opened the pullanda even without breaking the seal. At this stage, seizing officer Anand Kumar shown that the thread whereby the pullanda was stitched has also been bitten by rat and pullanda was opened only after removing the thread from that portion.”

14.In view of the above, presently there is prima facie reason to believe that Applicant is not guilty of the offence charged.

15.The Applicant is stated to have no criminal antecedents, as is also reflected from his Nominal Roll. The Applicant is stated to be in custody since 29.01.2020. The co-accused Rajender Kumar has already been released on Bail by this Court vide its judgment dated 27.05.2021 in BAIL APPLN. 1215/2021 titled Rajender Kumar v. NCB.

16.In Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109, the Supreme Court has held that prolonged incarceration of a person generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and, therefore, the conditional liberty
overrides the statutory restriction contained in Section 37(1)(b)(ii) of the NDPS Act.

17.In view of the above, the second limb of the pre- condition under Section 37 of the NDPS Act also stands satisfied.

18. Accordingly, it is directed that the Applicant be released on bail in SC No. 142/2020 titled Nicholas Nzube Ukaegbu v. NCB emanating from Case no. VIII/07/DZU/2020 registered with Police Station: Narcotics Control Bureau, New Delhi under Sections 8/21/29 of the NDPS Act, on furnishing a personal
bond in the sum of Rs.50,000/- with one local surety of the like amount to the satisfaction of the learned Trial Court, and further subject to the following conditions:

i.The Applicant will not leave the country without the prior permission of the learned Trial Court.

ii. The Applicant shall surrender his passport before the learned Trial Court.

iii. The Applicant shall provide his permanent address to the learned Trial Court. The Applicant shall also
intimate the Court, by way of an affidavit, and to the IO regarding any change in his residential address.

iv. The Applicant shall appear before the learned Trial Court as and when the matter is taken up for hearing.

v. The Applicant shall provide all/latest/fresh mobile numbers to the IO concerned, which shall be kept by the Applicant in a working condition at all times and shall not be switched off or changed by him without prior intimation to the Ld. Trial Court and the IO concerned. The mobile location be kept on at all times.

vi. The Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact, directly or indirectly, with any of the prosecution witnesses. In case the Applicant is found involved in another case, it will be open to the prosecution to file an appropriate application seeking cancellation of his bail in the present case as well.

vii. The IO is further directed to issue a request to the Bureau of Immigration, Ministry of Home Affairs of
the Government of India or other appropriate authority, to forthwith open a ‘Look-out-Circular’ in the
Applicant’s name, to prevent the Applicant from leaving the country, without the permission of the learned Trial Court.

19.The learned counsel for the respondent submits that one of the conditions for Bail should be that a certificate of assurance be obtained from the concerned embassy that the accused shall not leave
the country. However, the Supreme Court in its recent order dated 17.08.2023 in Criminal Appeal No. 2468/2023, relying upon the judgments of the Supreme Court in Hussainara Khatoon v. Home Secy., State of Bihar (1980) 1 SCC 81 and Mohd. Muslim @ Hussain v. State (NCT of Delhi) 2023 SCC Online SC 352, has dispensed with such a condition. The above waiver has also been granted by a Coordinate Bench of this Court in the order dated 06.09.2023 passed in BAIL APPLN. 2768/2022 titled Chiammanda Okoro@ Sophia@ Kamano Marie v. Narcotic Control Bureau. Hence, I do not deem it
appropriate to impose such a condition in the present case.

20. Needless to state, any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.

21.The Bail application is disposed of in the above terms.

22.Copy of this judgment be sent to the Jail Superintendent for information and necessary compliance.

NAVIN CHAWLA, J FEBRUARY 13, 2024/rv/AS Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:SUNIL Signing Date:14.02.2024 15:22:06 BAIL APPLN. 2708/2022