Procedural defects can override NDPS bail bar, says Calcutta HC

Kolkata: The Calcutta High Court has held that serious procedural defects in the handling of seized narcotics can neutralise the statutory bail bar under the NDPS Act, suspending the order of sentence of two convicts after finding that mandatory safeguards were not followed.

A Division Bench comprising Justices Arijit Banerjee and Apurba Sinha Ray observed that although the prosecution claimed recovery of a large quantity of narcotics from a vehicle, the manner in which the seized contraband was dealt with raised substantial doubts at the appellate stage.

The court noted that 80 packets of contraband were allegedly recovered during the raid, but were later mixed and produced before the magistrate as two bulk nylon sacks without any explanation or authorisation.

There was no material on record to show when, how, or under whose instruction the packets were mixed.

The Bench observed that the NDPS law does not permit seized contraband to be mixed, and that doing so contravenes the basic duties of officers responsible for seizure and preparation of inventory.

The court further noted that, although certification under Section 52-A of the NDPS Act was obtained from a magistrate, the inventory only reflected the weighing of two nylon sacks and did not record the verification of the individual packets allegedly seized.

It also found that only a very small quantity of the seized substance was sent for forensics despite the bulk recovery claimed by the prosecution.

The court flagged the failure of the prosecution to examine the gazetted officer in whose presence the search was stated to have been conducted, as well as the magistrate who issued the inventory certification.

The court held that in view of the procedural defects apparent on the face of the record, the rigours of the NDPS Act’s bail provisions could not operate as a bar at this stage.

The bench directed that the convicts be released on bail subject to conditions, including territorial restrictions, periodic reporting to the local police station, and mandatory appearance during the pendency of the appeal.

The Bench clarified that all observations made in the order were prima facie in nature and limited to the decision on suspension of sentence and grant of bail.