Procedural irregularity on disposal of seized drugs neither entitle accused bail, nor vitiate trial in NDPS cases: Supreme Court

New Delhi: The Supreme Court has said that any procedural irregularity related to the disposal of seized drugs under the Narcotic Drugs and Psychotropic Substances (NDPS) Act would neither entitle the accused to be released on bail nor would it vitiate the trial on that ground alone.

A bench of Justices Bela M Trivedi and Satish Chandra Sharma also said the accused should generally be not released on bail in NDPS offences where the offence is punishable with minimum sentence of 10 years, since negation of bail is the rule and its grant is an exception.

The court said the provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act, in addition to its impact on 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 bench said in its judgment on December 20, 2024.

The bench allowed an appeal by Narcotics Control Bureau and set aside the Delhi High Court's order of May 18, 2023 granting bail to Kashif, in a case related to sending NRx tablets to USA, solely on the ground of belated compliance of Section 52A of the NDPS Act, misinterpreting the provision, and without recording the findings as mandated in Section 37 of the said Act.

The court stressed that apart from granting opportunity of hearing to the public prosecutor, the other two conditions, the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions.

With regard to Section 52 A of the NDPS Act, the bench said, "The purpose of insertion of the provision 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."

The court pointed out the provision 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, the court said.

"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," it said.

The bench further declared 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, it said.

The bench also noted as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc for the possession of which he failed to account satisfactorily.

"An anomalous situation would arise if a non-compliance or delayed compliance of Section 52A is held to be vitiating the trial or entitling the accused to be released on bail, though he is found to have possessed the contraband substance, and even if the statutory presumption is not rebutted by him. Such could not be the intention of the legislature," the bench said.

In the case, the bench remanded the matter back to the High Court for a fresh consideration by a bench other than the one which passed the previous order. The court also extended for four weeks the bail to the accused, to let the High Court decide the bail plea on merits.