Procedural Lapses in NDPS Act Compliance: The Bombay High Court granted bail to four accused in a narcotics case due to non-compliance with the mandatory procedures under the NDPS Act, particularly the failure to issue the certificate under Section 52A(3) in the prescribed Form 5. The Court emphasized that strict adherence to statutory rules is essential to ensure the integrity of the prosecution’s case. (Paras 13, 14, 15, 27)

Right to Personal Liberty: The Court reiterated that the right to personal liberty under Article 21 of the Constitution cannot be compromised, even in cases involving stringent laws like the NDPS Act. Non-compliance with procedural safeguards, such as informing the accused of the grounds of arrest under Article 22(1), vitiates the arrest and entitles the accused to bail. (Paras 17, 18, 19)

Twin Conditions of Section 37 NDPS Act: The Court held that while Section 37 of the NDPS Act imposes strict conditions for granting bail, the prosecution must first establish that the statutory procedures were followed. In this case, the prosecution failed to satisfy the Court that the contraband was recovered in a justified manner, leading to the grant of bail. (Paras 9, 11, 21)

Circumstantial Evidence and WhatsApp Chats: The Court noted that WhatsApp chats and circumstantial evidence alone cannot be sufficient to establish guilt under the NDPS Act, especially at the bail stage. The prosecution must provide a complete chain of evidence to link the accused to the crime. (Paras 10, 12)

Directions for Future Compliance: The Court issued directions to all prosecuting agencies to strictly follow the NDPS Act and Rules, particularly the procedure for issuing certificates under Section 52A(3) in Form 5. The Court also directed the dissemination of guidelines to all police stations to prevent procedural lapses in future cases. (Paras 25, 26, 27, 30)

The Bombay High Court granted bail to all four applicants, holding that the prosecution failed to comply with the mandatory procedures under the NDPS Act, particularly the issuance of the certificate under Section 52A(3) in Form 5. The Court also found that the prosecution did not establish a complete chain of evidence to link the accused to the crime. (Paras 31, 33)

Major Acts:

• Constitution of India (COI), Article 21 and 22 – Right to Personal Liberty and Protection Against Arrest.

• Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Sections 8(c), 21(c), 22(c), 29, 37, 42, 50, 52A, 57, and 57A.

• Indian Penal Code, 1860 (IPC), Sections 465, 468, 471, and 473.

• Code of Criminal Procedure, 1973 (CrPC), Sections 50 and 161.

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Sections 180 and 190.

Subjects:

• NDPS Act, Section 52A, Form 5, Procedural Compliance, Right to Liberty, Circumstantial Evidence, WhatsApp Chats, Bail Conditions, Statutory Rules, Drug Trafficking.

Facts:

• Nature of the Litigation: The case involved four bail applications filed by accused persons charged under the NDPS Act for possession and trafficking of commercial quantities of narcotic substances, including Codeine Phosphate and Nitrazepam.

• Remedy Sought: The applicants sought bail on the grounds of procedural lapses, including non-compliance with Section 52A of the NDPS Act and violations of their constitutional rights under Articles 21 and 22.

• Reason for Filing: The applicants argued that the prosecution failed to follow mandatory procedures under the NDPS Act, particularly the issuance of the certificate under Section 52A(3) in Form 5, which vitiated the recovery of contraband and their subsequent arrest.

• Previous Decisions: The Sessions Court had previously granted bail to one of the accused (Accused No.3) on similar grounds. The High Court, in this case, extended the same reasoning to the other applicants.

Issues:

1. Whether the non-compliance with Section 52A of the NDPS Act, particularly the failure to issue the certificate in Form 5, vitiates the prosecution’s case and entitles the accused to bail? (Paras 13, 14, 15)

2. Whether the prosecution established a complete chain of evidence to link the accused to the alleged crime, especially in light of the circumstantial evidence and WhatsApp chats? (Paras 10, 12)

3. Whether the accused’s right to personal liberty under Article 21 of the Constitution was violated due to procedural lapses in their arrest and detention? (Paras 17, 18, 19)

Submissions/Arguments:

• Applicants’ Arguments: The applicants contended that the prosecution failed to follow mandatory procedures under the NDPS Act, particularly the issuance of the certificate under Section 52A(3) in Form 5. They also argued that the recovery of contraband was not justified, and the WhatsApp chats did not establish their guilt. (Paras 6, 7, 8)

• State’s Arguments: The State opposed the bail applications, arguing that the accused were involved in the trafficking of commercial quantities of narcotics and that the rigors of Section 37 of the NDPS Act should apply. The State also contended that the procedural lapses were technical and should not impede the prosecution’s case. (Para 9)

Ratio:

• Strict Compliance with Statutory Procedures: The Court held that strict compliance with the procedures under the NDPS Act, particularly Section 52A, is essential to ensure the integrity of the prosecution’s case. Non-compliance with these procedures vitiates the recovery of contraband and entitles the accused to bail. (Paras 13, 14, 15, 27)

• Right to Personal Liberty: The Court emphasized that the right to personal liberty under Article 21 of the Constitution cannot be compromised, even in cases involving stringent laws like the NDPS Act. Procedural lapses, such as the failure to inform the accused of the grounds of arrest, vitiate the arrest and entitle the accused to bail. (Paras 17, 18, 19)

• Circumstantial Evidence and WhatsApp Chats: The Court held that WhatsApp chats and circumstantial evidence alone cannot be sufficient to establish guilt under the NDPS Act, especially at the bail stage. The prosecution must provide a complete chain of evidence to link the accused to the crime. (Paras 10, 12)