Page No.# 1/9 GAHC010071392025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1071/2025 BALIRAM RABHA S/O- LATE NAREN CH RABHA, VILL- MANIKPUR, PS PALASHBARI, DIST- KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR K BHUYAN, MR. M U E BHUYAN,R K TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 09.06.2025 1. Heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Baliram Rabha, who is detained behind the bars since 07.08.2024 (for last 296 days) in connection with NDPS Case No. 2/2025 corresponding to Palashbari P.S. Case No. 274/2024 under Sections 20(b)(ii) Page No.# 2/9 (c)/29 of NDPS Act, 1985. 3. The gist of accusation in this case is that on 07.08.2024 one Rikhab Borah, SI of Police had lodged an FIR before the Officer-in-Charge of Palashbari Police Station, inter alia, alleging that, on 07.08.2024, at about 5:30 AM, an information was received by the Officer-in-charge of Palashbari Police Station that some persons were transporting some drugs from Garilick side to Palashbari. On receipt of the said information, a naka checking was arranged, during which a vehicle (tempo) bearing Registration No. AS-25-CC-1887 was intercepted with the accused persons inside the said vehicle and on search of the vehicle, 31 Kgs. of Ganja was recovered from the said vehicle. 4. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars for last more than 296 days and till date only four out of nine listed prosecution witnesses have been examined. 5. This bail application is mainly filed by the petitioner on the ground that the mandatory provisions under Section 52A of the NDPS Act, 1985 while drawing the samples from the seized ganja was not followed. He submits that if the mandatory provision of Section 52A is violated, the petitioner is entitled to get bail on that ground only. 6. The learned counsel for the petitioner has submitted that in the instant case 31 kgs of ganja was recovered. He submits that when the seized ganja which was found in 50 numbers of plastic carry bags inside three separate bags were produced before the Magistrate for sampling of the said ganja, the procedure prescribed under Narcotics Drugs and Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022 (hereinafter referred to as ”2022 Rules”) were not followed in this case. He submits that in the instant Page No.# 3/9 case, the Magistrate allowed drawing of three representative samples of 25 grams of seized contraband without complying with Rule 10 of the 2022 Rules. 7. The learned counsel for the petitioner has submitted that the Rule 3(2) of the 2022 Rules provides that, “if the narcotics drugs, psychotropic substance and controlled substance are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification.” 8. Learned counsel for the petitioner has also submitted that Rule 10(1) of 2022 Rules provides that one sample in duplicate shall be drawn from each package and containers seized, however, in the instant case though there were 50 packages, only three representative samples were drawn as against the necessity of drawing of representative samples from each of the 50 packages. 9. He also submits that as per the provisions of Rule 10(2) of 2022 Rules, no colour test by drug identification kit was conducted in the instant case and the seized contraband samples were not bunched in the lots of 40 packages or containers as required under Rule 10(2) of 2022 Rules. 10. He submits that as the sample of the contraband was drawn in this case is in violation of the 2022 Rules, it amounts to violation of the mandatory provisions of Section 52A of the NDPS Act, 1985 and when there is a violation of mandatory provision of 52A of the NDPS Act, 1985, the petitioner is entitled to get bail on that ground. To substantiate his submissions learned counsel for the petitioner has cited a ruling of this court in the case of “Altaf Hussain vs. State of Assam” (Order dated 05/08/2024 in BA no. 1048/2024). 11. On the other hand, the learned Additional Public Prosecutor has submitted that there is no violation of the mandatory provision of Section 52A in Page No.# 4/9 this case. He submits that the veracity of the pleas raised by the petitioner in this case can be determined only during the trial. He further submits that even if there is procedural non-compliance of 2022 Rules or Section 52 A of the NDPS Act, 1985, same is not fatal to the prosecution case. In support of his submission, he has cited the ruling of the Apex Court in the case of “Bharat Aambale vs. State of Chhattisgarh” reported in “2025 SCC Online SC 110”. 12. He submits that since the contraband seized in this case is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case, therefore, he prays for dismissing the bail application. 13. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the case record of NDPS Case No. 2/2025. 14. On perusal of the case record, it appears that this is for the second time the petitioner has approached this Court seeking bail. His earlier bail application was dismissed by this Court on 15.10.2024 in Bail Application No. 2801/2024. In the instant case the petitioner has sought for bail mainly on the ground of violation of the provisions of Section 52A of the NDPS Act, 1985. 15. It is submitted by the learned counsel for the petitioner that the samples of the contraband, in the instant case, were drawn contrary to the provisions prescribed under Rule 10(1) of 2022 Rules which amounts to violation of Section 52A of the NDPS Act, 1985. 16. Though, the learned counsel for the petitioner has relied on the order of this Court passed in the case of “Altaf Hussain vs. State of Assam” (BA No. 1048/2024, dated 05/08/2024), wherein the petitioner of that case was granted bail mainly because of non-compliance of the procedure prescribed for drawing Page No.# 5/9 of samples in the 2022 Rules and thereby it was held that there is a violation of Section 52A of the NDPS Act which was held to be mandatory in light of the Apex Court in several of its rulings. The said judgment and order was passed on 05.08.2024. However, it appears that the law in this case has been laid down by the ruling of the Apex Court in its judgment passed in the case of “Bharat Aambale vs. State of Chhattisgarh” (supra) which was delivered on 6th of January, 2025 by the Apex Court. In the said case, the Apex Court has observed as follows:- “50. We summarize our final conclusion as under:— (I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of Page No.# 6/9 seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in- charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without Page No.# 7/9 hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not Page No.# 8/9 affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt”. 17. Thus, the Apex Court has categorically observed in the aforesaid judgment that the procedure prescribed in the standing orders/rules in terms of Section 52A of the NDPS Act, 1985 is only intended to guide the officers to see that a fair procedure is adopted by the Officer-in-charge of the investigation and in such case what is required is substantial compliance of the procedure laid down. It also observed that mere non-compliance of the procedure under Section 52A of the NDPS Act or the standing orders/rules there under will not be fatal to the trial unless there are discrepancy in the physical evidence rendering the prosecution case doubtful, which may not have been there had such compliance been done. 18. In the instant case also, even if the submission of learned counsel for the petitioner is agreed upon that to the effect that there is violation of the procedure prescribed in 2022 Rules in collecting the samples in as much as samples were not collected from each of the 50 packages of the contraband, however, as three representative samples were collected, it can be said that there has been substantial compliance with the procedure laid down for collecting the samples and mere non-compliance would not be fatal to the prosecution case. 19. Thus, in view of the judgment of the Apex Court in the case of “Bharat Aambale vs. State of Chhattisgarh” (supra), it appears that the provisions of Section 52A is not held to be mandatory if there is a substantial compliance of the said provision. 20. Thus, the ground of mere non-compliance of the procedure prescribed Page No.# 9/9 in 2022 Rules would be of no assistance to the petitioner in getting bail in this case as otherwise the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 21. For the reasons stated in the foregoing paragraphs, the application for bail of the petitioner is hereby dismissed. JUDGE Comparing Assistant