InBail Appln. 2879/2022 -DEL HC- ‘Discrepancy in contraband quantity during seizure & sampling vitiates sanctity of recovery proceedings’, says Delhi HC while granting bail to man accused of drug trafficking 
Justice Jasmeet Singh [13-09-2023]

Read Order:Sarvothaman Guhan @Sarvo V. Narcotics Control Bureau

Chahat Varma

New Delhi, September 14, 2023: The High Court of Delhi has granted bail to a man accused of drug trafficking due to concerns over the credibility of the recovery proceedings.

According to the prosecution, the applicant was intercepted at IGI Airport based on information provided by the NCB, Kolkata. During the inquiry, the applicant disclosed the presence of narcotic drugs in his bag. A search was conducted, resulting in the recovery of 30 grams of Ganja and 0.45 grams of tablets of Ecstasy (MDMA). The applicant voluntarily provided a statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), revealing his involvement in the narcotic drug business. Subsequently, the applicant and co-accused persons, Rahul Mishra (accused no. 2) and Aashray Pandey (accused no. 3), were arrested. Later, accused No. 4, Jasbir Singh, also appeared and voluntarily provided a statement under Section 67 of the NDPS Act. Jasbir Singh's disclosure pertained to a drug syndicate operating through Darknet and the Orient Express Group on the Telegram App. The syndicate allegedly procured narcotic drugs from different countries and supplied them within India.

The single-judge bench of Justice Jasmeet Singh noted that, even assuming the best-case scenario presented by the NCB, no commercial quantity of contraband was recovered from the applicant, either in person or from his residence. Additionally, the recovery from accused no. 2, Rahul Mishra, could not be attributed to the applicant, as there was no material or communication between the applicant and accused no. 2, on the date of the recovery. Similarly, the recovery from accused no. 3 was also not attributable to the applicant.

The bench also took note of an undue delay of 10 days in filing the application under Section 52-A of the NDPS Act. The bench remarked that even assuming non-working days due to the weekend and Independence Day as causing a hindrance in submitting the application under Section 52-A of the NDPS Act, the NCB took more than a week to file the said application, which was essentially a clerical formality and should not have taken so much time. The delay caused was seen as a procedural lapse on the part of the NCB agency, which raised doubts about the integrity of the sample.

“As valuable rights of the applicant are at stake, the prosecution must show alacrity,” said the bench.

Furthermore, the bench observed that the discrepancy in the weight of the samples seized under Section 52-A of the NDPS Act and the report of the FSL, erodes the credibility of the recovery proceedings. The bench noted that the NCB had not provided any explanation regarding the discrepancy, and thus, such discrepancies must be construed in favour of the applicant in this case. Such a significant discrepancy in the quantity of recovered contraband at the time of seizure and during sampling casts doubt on the legitimacy of the recovery proceedings and makes the recovery questionable.

The bench also remarked that the NCB had not provided any explanation as to why the applicant's bag was not searched at the airport in the presence of an independent witness but was instead searched at the NCB office. It was stated that in cases where an accused is apprehended in a public place and suspected of carrying contraband, the prosecuting agency should ideally conduct the search for contraband at the public place itself, where a large number of independent witnesses are available. This approach adds considerable credibility to the search and seizure proceedings and inspires confidence in the transparency of the process.

The bench also observed that there was no evidence on record to establish that the applicant was a member of the Telegram group 'Orient Express' or any other group involved in the buying and selling of narcotic substances. Furthermore, no connection between the applicant and the other co-accused had been alleged, except for accused no. 2, 3, and 4. Notably, these co-accused persons (accused no. 2, 3, and 4) had already been granted bail. The NCB claimed that the trafficking of narcotic substances in the syndicate occurred through bitcoins and other digital currencies. However, there was no evidence presented before the court to demonstrate that the applicant sent or received any bitcoins or had a bitcoin wallet. Therefore, the bench held that it cannot be asserted that the applicant was involved in a general conspiracy of a drug syndicate with the other co-accused persons, as there was no common design or integrated effort by the applicant in conspiracy with them.

The bench concluded that the case had reached the stage of arguments on charges, and the evidence was likely to take a considerably long time. Consequently, the application was allowed, and the applicant was granted bail.