Introduction
Special Penal Acts introduced by the legislature to address specific problems in society that more often than not are grave and widespread. The Acts are introduced with definite objects and purpose aimed primarily at not only preventing the specific harm but also acting as a deterrent for the public from engaging in the offences by introducing stringent punishments and conditions for bail. The Supreme Court in the case of Narcotics Control Bureau vs Kashif¹ heard an appeal from the decision of the Delhi High Court granting bail to the Respondent whose application was restricted to the non - compliance of the investigating authorities with Section 52 A of the NDPS Act, 1985. The Supreme Court allowing the appeal analysed the purpose and objective of the NDPS Act and Section 52 A of the NDPS Act, 1985, using both literal interpretation as well as purposive interpretation concluding that the High Court of Delhi had misinterpreted Section 52 A of the NDPS Act, 1985 and had granted bail without recording its findings as mandated under section 37 of the NDPS Act, 1985.

Facts of the Case
On 24.02.2022 the Investigating Authority intercepted a parcel containing psychotropic substances which were of a commercial quantity. Upon interception search and seizure was conducted and a panchnama was prepared.

Based on the statements of the apprehended co - Accused another seizure was carried out on 28.02.2022 at the IGI Airport where commercial quantity of psychotropic substance was found. On 02.03.2022 another seizure took place. All the seized contraband was sealed and placed in the maalkhana on the same day of seizure.

On 06.03.2022 the Respondent was named by a co - Accused as an associate and was arrested accordingly. In custody the Respondent admitted to assisting the co - Accused by sending him the parcel through a bus conductor. A complaint was lodged against the Respondent and six others for offences punishable under Sections 8, 22(c), 23(c), and 29 of the NDPS Act, 1985.

The Respondent preferred an application for bail before the Delhi High Court on the sole ground that the authorities had not complied with Section 51 A of the NDPS Act, 1985, within reasonable time which gave rise to the apprehension that the sample of contraband could have been tampered with and that in the case of wrongly drawn samples, the benefit of doubt would accrue to the Respondent. The Respondent had filed the bail application on the issue of violation of Standing Order No. 1 of 88 and delay in filing the application before the Magistrate for drawing the sample under Section 52 A of the NDPS Act, 1985

On the Object and Purpose of the NDPS Act, 1985
The Supreme Court in order to understand the purpose behind the NDPS Act looked at the legislation against narcotics prior to its implementation. The Supreme Court observed that prior to the NDPS Act, 1985, statutory control over narcotics was governed by various central and state legislations including the Opium Act, 1857, Opium Act, 1878, and the Dangerous Drugs Act, 1930.

However, as the epidemic of illicit drugs and narcotics grew exponentially the Parliament realised the need for a comprehensive central legislation which consolidated the various acts as well as introduced stringent provisions for the control and regulation of operations relating to drugs and psychotropic substances and therefore introduced the NDPS Act, 1985.

A three judge bench of the Supreme Court in Hira Singh and Anr. vs. Union of India and Anr. (2020) 20 SCC 272 highlighted the requirement to interpret the object and purpose of the NDPS Act, 1985 with respect to the issues being sought to be combatted and curtailed and therefore called for a literal interpretation of the statute over a liberal interpretation:

“The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857 the Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which led to enactment of the NDPS Act. As observed hereinabove, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in the Narcotic Drugs and Psychotropic Substances Act, 1985 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of the NDPS Act are required to be interpreted keeping in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and Preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the Accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted”

Therefore here the three judge bench of the Supreme Court has called for a strict literal approach towards the implementation and interpretation of the NDPS Act, 1985, in lieu of the grave issues sought to be prevented and deterred through the Act and the severe need to protect Society from the harms caused by narcotics . The three judge bench here has highlighted the importance of a literal approach over a liberal reading so as to not frustrate the object and purpose as stated in the preamble of the Act and the conditions that led to its implementations.

On Compliance of the mandate Under Section 37, NDPS Act 1985
The Supreme Court in the present matter summarised the provisions of Section 37 of the NDPS Act, 1985, stating that bail for offences punishable with imprisonment for a minimum period of ten years, the Accused shall not be released on bail unless the provisions of Section 37 of the NDPS Act, 1985, are strictly complied with, these provisions being Section 37 (b) (i) where the Public Prosecutor has been given an opportunity to oppose the application for bail and Section 37 (b) (ii) where after the opposition by the Public Prosecutor, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The Supreme Court reiterated that the two conditions were cumulative and not alternative conditions.

The Supreme Court discussed its decision in State of M. P. vs. Kajad ² wherein the Court observed that in a case where imprisonment is for a period of at least ten years the rule is negation of bail and the grant is the exception, further the court granting bail must grant bail on the grounds of the record produced before it, in order to determine if reasonable grounds exist to believe that the Accused is not guilty. The Supreme Court in the present matter also discussed a three judge bench decision in NCB vs. Mohit Aggarwal ³ wherein the three judge bench of the Supreme Court stated that “The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the Respondent Under Section 37 of the NDPS Act, 1985.”.

Therefore, the Supreme Court in the present case observed that the offences that the Respondent was charged with fell under the ambit of Section 37 of the NDPS Act, 1985. The Supreme Court recorded that the grounds for bail were merely non-compliance with section 52 A of the NDPS Act, 1985, and while the application was opposed by the Appellant i.e. NCB, it was obligatory for the High Court of Delhi to have recorded the reasonable grounds to believe that the Respondent was not guilty of the offences he was charged with and that he would not commit such offences once releases. The Supreme Court held that the non-recording of such satisfaction which was mandatory in nature had rendered the decision of the High Court of Delhi untenable.

The Supreme Court therefore held that while considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act, 1985, which are mandatory in nature. Recording of findings as mandated in Section 37 of the NDPS Act, 1985, is sine qua non is known for granting bail to the Accused involved in the offences under the NDPS Act, 1985.

On the purpose of insertion of Section 52 A of the NDPS Act, 1985
Section 52A of the NDPS Act, 1985, provides that the Government may provide certain procedures for the effective disposal of the seized narcotics and psychotropic substances and other controlled substances in order to prevent theft, substitution or constraint of proper storage space. The provision further provides that the officer in charge of the closest police station shall prepare an inventory of the seized contraband along with details of quality, quantity, mode of packing , marks , numbers or such other identifying particulars along with other descriptive details and make an application to any Magistrate to certify its correctness, certifying photographs taken in presence of the Magistrate and for drawing of samples in the presence of the Magistrate. As per the provisions of Section 52 A of the NDPS Act, 1985, the inventory, photographs, narcotics and contraband, and any samples drawn and certified by the Magistrate shall be treated by courts as primary evidence.

The Supreme Court highlighted that prior to the insertion of Section 52A in 1989 Central Government in exercise of the powers under Section 4(3) of the NDPS Act vide notification dated 17.03.1986, had constituted the Narcotics Control Bureau (NCB) conferring upon it powers and functions of the Central Government for matters contained in Section 4 (2) of the NDPS Act, 1985. It was noticed by the NCB that different Investigating Officers were adopting different procedures in drawing samples of seized narcotics, therefore with a view to create a standardized and secured system of handling drug samples Standing Instructions No. 1 of 88 was notified in 1988. The said Notification of the Standing Instructions No. 1 of 88 pertained to the procedure to be followed for drawing samples from the seized narcotic drugs and psychotropic substances, numbering of samples drawn, sealing, mode of packing, dispatch of samples to the concerned laboratory for test etc.

The Supreme Court observed that the necessity to introduce Section 52 A arose in view of the International Convention of 1988 held by the United Nations which adopted “United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988” and other International conferences wherein it was resolved that the member countries would take measures for early destruction and lawful disposal of narcotic and psychotropic substances. The Central Government therefore introduced a Bill in Parliament, i.e., the Narcotic Drugs or Psychotropic Substances (Amendment) Bill, 1988, specifically mentioning that it was for giving effect to the International Conventions. Resultantly, the statutory provision as contained in Section 52 A for disposal of seized narcotic drugs and psychotropic substances came to be inserted in the Act with effect from 29.05.1989. The section as introduced alongside the Standing Order 1 of 1989 in exercise of Sub Section (1) of Section 52 A of the NDPS Act, 1985 outlined provisions for the drawal of samples on the spot of recovery, quantity to be drawn for sampling, etc. It also provided a detailed procedure with regard to the method of drawal of representative samples, storage of samples, dispatch of samples, preparation of inventory, etc., and also provided for an early disposal of drugs and other articles by having recourse to the provisions of Sub-section (2) of Section 52 A of the NDPS Act, 1985.

The Supreme Court attempted to interpret Section 52 A of the NDPS Act, 1985 using a literal interpretation coupled with interpretation with internal aids. The Supreme Court opined that apart from the plain language of the provision, the internal aids being the section heading and the marginal note made it abundantly clear that the purpose of the provision is for the disposal of the seized narcotic drugs and psychotropic substances. The Supreme Court held that:

“As per the well settled Rule of interpretation, the Section Heading or Marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The Section Heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the Section which follows than might be afforded by a mere preamble.”

On Irregular Compliance with Section 52 A of the NDPS Act, 1985
The Supreme Court addressed the issue at hand regarding the irregularity in the procedure laid down by Section 52 A of the NDPS Act, 1985. The Supreme Court held that in the event of any deviation or delay in making the application for disposal under Section 52 A (2) of the NDPS Act, 1985, the same at most could be termed as an irregularity and not an illegality. The Supreme Court distinguished an irregularity from an illegality and stated that:

“The jurisprudence as developed by the courts so far, makes clear distinction between an "irregular proceeding" and an "illegal proceeding." While an irregularity can be remedied, an illegality cannot be. An irregularity may be overlooked or corrected without affecting the outcome, whereas an illegality may lead to nullification of the proceedings. Any breach of procedure of Rule or Regulation which may indicate a lapse in procedure, may be considered as an irregularity, and would not affect the outcome of legal proceedings but it can not be termed as an illegality leading to the nullification of the proceedings”

The Supreme Court further stressed that the purpose of early disposal was to combat the possibility of theft and the constraints of safe storage and in order to implement the International Convention entered. The Court emphasized that delayed compliance in no way could be treated as an illegality entitling the Accused to be released on bail or to claim acquittal in a trial. The Supreme Court further highlighted Section 54 of the NDPS Act, 1985, and observed that the section created a rebuttable presumption against the Accused found in possession of narcotics which he has failed to account for satisfactorily. Therefore, unless the presumption is rebutted during the course of trial, there is a prima facie presumption that the Accused committed the offence.

The Supreme Court relied on its decision in Pooran Mal vs. Director of Inspection (Investigation) New Delhi and Ors.⁴, which was followed in State of H. P. vs. Prithi Chand and Anr. ⁵wherein the Supreme Court held that the evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. The Supreme Court in the said case further held that :

When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure is not liable to be shut out. Search and seizure is not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense.

The Supreme Court relied on the case of Khet Singh vs. Union of India where in it was held that :

“Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the Accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.”

The Supreme Court on the basis of the facts of the case, a lieteral reading of the statute and the judicial pronouncements of larger benches concluded the following in favour of the Applicant:

The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the Accused involved in the offences under the NDPS Act.

The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

Sub-section (2) of Section 52A lays down the procedure as contemplated in Sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the Accused to be released on bail nor would vitiate the trial on that ground alone.

Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the Accused.

Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the Accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible Under Section 54 of the NDPS Act.”

While the Supreme Court in this matter has gone into a detailed discussion of the purpose and object not only of the NDPS Act, 1985 itself but also Section 52 A of the same Act dealing with the question of disposal, it has masterfully distinguished the question of illegality and irregularity and confined observations to matter involving commercial quantities so as to not prejudice those found with non commercial quantities by its strict and literal interpretation.

However, at the same time the observations of the Supreme Court may raise eye brows due to the view that any irregularity may not affect the admissibility of evidence in a case of narcotics. This is a fine line as it opens the flood gates of procedural malpractice and may allow tampering of the contraband that is stored in evidence.

By - Parshva Shah