Procedural lapse in NDPS cases can violate fundamental rights: High Court

Kolkata: Observing that bail provision is anyway stringent under NDPS Act and any procedural lapse could violate the fundamental rights of the accused, the Calcutta High Court recently granted bail to a woman and suspended her 15 years rigorous imprisonment sentence in a case where narcotic samples were drawn out at the place of seizure in the absence of a Magistrate.

The bench of Justices Soumen Sen and Prasenjit Biswas observed that the prosecution prima facie failed to establish that the mandate of Section 52A (2) of the NDPS Act was complied with at the time of drawing out representative samples in the presence of Magistrate and sent for chemical examination.

The court observed that neither was any evidence brought on record to prove that the list of the samples drawn was certified by the Magistrate.

The court said the provisions of the NDPS are extremely stringent coupled with various presumptions raised against the accused. It contains necessary safeguards against arbitrary search, seizure and arrest or else it would violate the fundamental rights under the Constitution. Hence, the same requires strict adherence to the law and procedure. “The technicalities as provided in the NDPS Act are only safeguards available to any prosecuted under the NDPS Act,” court observed.

The HC upheld a Supreme Court judgement which directed all the investigating agencies to draw the representative sample (narcotics) that are supposed to be sent to the Central Forensic Science Laboratory for determination of the contraband before the Magistrate. According to the defence’s case, the husband of the petitioner was intercepted and arrested near Sealdah Court. After recovering narcotics from his possession, the sample of the seized contrabands were allegedly taken from the spot in the magistrate’s absence. During investigation, the convict allegedly admitted more narcotics were stored at his home and the petitioner convict (wife) worked for his drug business. A raid was conducted at the house and more narcotics were recovered. A sample was taken out from this once again in absence of the magistrate and sent for chemical examination.