Is delay in applying under Section 52A of the NDPS Act an irregularity or an illegality?

The petitioner, who was arrested and remanded to judicial custody on 08.04.2025 for the alleged offence under Sections 8(c) r/w 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 in Crime No.145 of 2025 on the file of the respondent police, seeks bail.

The case of the prosecution is that, acting on a secret information, the respondent police conducted a search on 08.04.2025 near Athar Building, Vellars Garden 2nd Street, Thousand Lights. On noticing the police party, the petitioner allegedly attempted to flee but was apprehended. Upon search, 22.445 kgs of ganja was recovered from the bags found in his possession. During enquiry, the petitioner allegedly confessed that he had been selling the contraband to the public for unlawful gain. Hence, the case.

This is a case involving the recovery of 22.445 kgs of ganja from the petitioner, who is the sole accused in the present case. The petitioner was remanded to judicial custody on 08.04.2025. The learned counsel for the petitioner would contend that the grounds of arrest were not furnished to the petitioner, thereby infringing his constitutional right to personal liberty. It is his further contention that the seizure and sampling were not conducted in accordance with Section 52A of the NDPS Act, rendering the entire sampling process illegal and entitling the petitioner to an acquittal. Hence, he would contend that the petitioner is entitled to be enlarged on bail. It is also his contention that, during the examination of P.W.1, the Search Officer categorically admitted that the seizure mahazar did not bear the signature of the accused. Therefore, according to the learned counsel, the petitioner was denied his valuable right to be searched in the presence of a Gazetted Officer, thereby vitiating the entire seizure. It is his further contention that the pendency of 31 previous cases cannot, by itself, disentitle the petitioner from seeking bail.

The learned counsel for the petitioner placed reliance upon the judgment of this Court in N. Uganchand Kumawat Vs. Inspector of Police, NIB-CID, Dindigul, reported in 2023 SCC OnLine Mad 9270, and would contend that non-compliance with Sections 52 and 57 of the NDPS Act would entitle the accused to an acquittal. He also relied upon the judgment of the Hon'ble Supreme Court in Rajkumar Hariram Gameti Vs. State of Gujarat, reported in (2024) 11 SCC 421, and would contend that a confession, by itself, is not sufficient to implicate an accused. The learned counsel further relied upon the judgment in Maulana Mohammed Amir Rashadi Vs. State of Uttar Pradesh, reported in (2012) 2 SCC 382, to contend that a bail application cannot be dismissed solely on the basis of criminal antecedents. He also placed reliance upon the judgment in Nagraj V. Vs. UT of J & K, reported in 2025 SCC OnLine J&K 1168, and would contend that bail is the rule and jail is the exception. Though the learned counsel relied upon the aforesaid proposition, the principle that bail is the rule and jail is the exception is subject to the rigour of Section 37 of the NDPS Act. Therefore, it is incumbent upon the petitioner to demonstrate that there exists a reasonable possibility of acquittal, and not to conclusively establish his innocence.

Per contra, the said contention was stoutly opposed by the learned Government Advocate (Crl.Side) and would contend that the present case involves recovery of commercial quantity of contraband. He would further submit that the petitioner had not raised the defence regarding the grounds of arrest in the earlier bail petitions and that, this being the fifth bail petition, such a plea cannot now be permitted to be raised. It is also his contention that there has been no change in circumstances since the dismissal of the earlier bail petitions. He also relied upon the judgment of the Hon'ble Supreme Court in Narcotics Control Bureau Vs. Kashif, reported in 2024 INSC 1045 to support his case. Hence, he prayed to dismiss the present bail petition.

I have given my anxious consideration to either side submissions.

In the present case, one of the principal grounds urged by the learned counsel for the petitioner to establish a reasonable case for bail is the alleged non-furnishing of the grounds of arrest. Admittedly, this is the fifth bail petition, and in none of the earlier bail petitions had the petitioner raised such a plea. Further, the petitioner was remanded to judicial custody on 08.04.2025, whereas the judgment of the Hon'ble Supreme Court in Mihir Rajesh Shah Vs. State of Maharashtra, reported in (2026) 1 SCC 500, was delivered only on 06.11.2025, wherein it was held that the jurisprudence relating to the furnishing of grounds of arrest would operate prospectively so as to balance the rights of the accused and the obligations of the prosecution. Therefore, the defence relating to the grounds of arrest must fail on two counts: firstly, the petitioner did not raise such a plea at the earliest opportunity, and secondly, the arrest in the present case preceded the decision in Mihir Rajesh Shah's case (cited supra).

Coming to the issue of seizure and sampling, the learned counsel for the petitioner would contend that there was a delay in forwarding the samples and that there are certain procedural discrepancies. The question that arises for consideration is whether, assuming such procedural defects exist, whether they would render the entire prosecution illegal.

In this regard, it is appropriate to refer to the judgment of the Hon'ble Supreme Court in Narcotics Control Bureau Vs. Kashif, reported in 2024 INSC 1045, wherein the Hon'ble Supreme Court, in paragraph 23, held that any deviation or delay in making an application under Section 52A(2) of the NDPS Act before the jurisdictional Magistrate would amount only to an irregularity and not an illegality, and such irregularity would not nullify or vitiate the prosecution. For ready reference, this Court deems it appropriate to extract paragraph 23 of the said judgment, which reads as follows:- “23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub-section 1. thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under subsection 2. by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution. 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 learned counsel for the petitioner has also contended that certain polythene covers were not recovered and that there are discrepancies regarding the travel bag in which the contraband was allegedly seized and forwarded for sampling. As already observed, such discrepancies, even if assumed to be true, would not vitiate the prosecution. Therefore, the defence founded upon Section 52A of the NDPS Act must also fail.

Yet another contention advanced by the learned counsel for the petitioner is that the seizure mahazar does not bear the signature of the accused and, therefore, the petitioner was not informed of his right to be searched before a Gazetted Officer, rendering the entire search illegal.

A perusal of the deposition of P.W.1 would show that the witness has categorically stated that the petitioner was informed of his right to be searched before a Gazetted Officer and that, only upon the petitioner's consent, the search was conducted. The Constitution Bench of the Hon'ble Supreme Court in State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172, has categorically held that the information contemplated under Section 50 of the NDPS Act need not be in any prescribed format or necessarily be in writing, but what is mandatory is that the suspect should be made aware of the existence of such right.

It is also relevant to extract paragraph 24 of the Constitution Bench judgment of the Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, reported in (2011) 1 SCC 609, which reads as follows:- "24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. "

Therefore, the mere absence of the petitioner's signature in the notice issued under Section 50 of the NDPS Act would have no bearing on the legality of the search, since the Search Officer has categorically stated that the petitioner was informed of his right to be searched before a Gazetted Officer.

In view of the foregoing discussion, though the learned counsel for the petitioner has raised several defences, none of them merits acceptance. As rightly contended by the learned Government Advocate (Crl.Side), the present case involves commercial quantity of contraband and, therefore, the rigour under Section 37 of the NDPS Act squarely applies. Though the learned counsel sought to rely upon the aforesaid grounds to overcome the rigour under Section 37, none of them advances the petitioner's case, for the reasons discussed hereinabove. Hence, the petitioner is not entitled to bail. Apart from the above, the petitioner is involved in 31 previous cases, which also fortifies the above conclusion.

Accordingly, this Criminal Original Petition is dismissed. 22.07.2026 kv