Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 10.09.2026

Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

In a significant ruling concerning the sampling and preservation of seized narcotic drugs under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court held that an application under Section 52A of the NDPS Act for drawing samples before a Magistrate must be made within a reasonable time and that an unexplained delay of 51 days could not be regarded as reasonable.

In Kashif v. Narcotics Control Bureau, BAIL APPLN. 253/2023, Justice Jasmeet Singh held that violation of Section 52A in the facts of the case vitiated the sample-collection procedure and that the resulting benefit must accrue to the accused. The Court consequently granted bail to the applicant, who had been in custody since 7 March 2022.

The judgment is particularly important because the Court addressed a recurring question under the NDPS Act: where Section 52A does not prescribe a specific numerical deadline, how quickly must the investigating agency approach the Magistrate for sampling and certification?

The Delhi High Court answered that, taking guidance from Standing Order 1/88, it is desirable that the Section 52A application be made within 72 hours or near about that timeframe, while also recognising that what constitutes a reasonable time ultimately depends upon the facts and circumstances of each case.

Background of the Case

• The prosecution case originated from information received by a Junior Intelligence Officer of the Narcotics Control Bureau (NCB) concerning a suspicious parcel lying at the DHL Express office at Rama Road, Kirti Nagar, New Delhi.
• An NCB team reached the premises and examined the parcel. According to the prosecution, it contained 11 lace rolls and three pieces of cloth. Upon checking one lace roll, officers allegedly found 120 strips of Tramadol tablets, with ten tablets in each strip. Examination of the remaining rolls ultimately led to the alleged discovery of 13,200 strips of Tramadol tablets. The contraband was seized on 24 February 2022.
• The investigation subsequently led to further seizures. On 28 February 2022, 15,000 Zolpidem tablets were allegedly recovered at Terminal 3, IGI Airport, while another 19,440 Tramadol tablets were recovered from packages at Global India Express Pvt. Ltd., Mahipalpur.
• The prosecution alleged that co-accused Tamir Ali disclosed the involvement of Kashif and other persons in sending NRx tablets to the United States. Kashif was thereafter arrested near Jewar Toll Plaza on 7 March 2022.

Applicant’s Principal Challenge: Defective and Delayed Sampling

• The bail application raised serious objections concerning the manner in which the seized substances were sampled.
• The applicant argued that the procedure prescribed by Standing Order 1/88 had not been followed. In particular, it was contended that sampling had not been carried out on the spot in accordance with Clause 1.5 of the Standing Order.
• Reliance was placed upon Basant Rai v. State, 2012 SCC OnLine Del 3319, to challenge the procedure of mixing tablets recovered from different strips/packages rather than following the prescribed representative sampling procedure.
• The applicant also relied upon the Supreme Court decision in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, AIR 1993 SC 1456, contending that proper sampling was required from the individual packets and that the procedure followed by the NCB was deficient.
• However, the issue that ultimately assumed central importance before the High Court was the delay in approaching the Magistrate under Section 52A of the NDPS Act.

Section 52A of the NDPS Act: Why Is Magistrate-Supervised Sampling Important?

• Section 52A lays down the statutory mechanism concerning disposal and evidentiary documentation of seized narcotic drugs and psychotropic substances.

Under Section 52A(2), the authorised officer is required to prepare an inventory and may approach the Magistrate for, among other things:

certification of the correctness of the inventory;

taking and certification of photographs; and

drawing representative samples in the presence of the Magistrate and certification of the correctness of the list of samples.

• Importantly, Section 52A(4) gives evidentiary significance to the inventory, photographs and list of samples certified by the Magistrate by providing for their treatment as primary evidence.
• The integrity of this process therefore assumes considerable importance in an NDPS prosecution.

Standing Order 1/88 and the 72-Hour Requirement

• The Court also examined Clauses 1.5 and 1.13 of Standing Order 1/88.
• Clause 1.5 provided for samples to be drawn at the spot of recovery, in duplicate, in the presence of panch witnesses and the person from whose possession the substance was recovered.
• Clause 1.13 provided that samples should be dispatched to the laboratory within 72 hours of seizure to avoid legal objections.
• The Court noted that a notification published on 23 December 2022 repealed Standing Orders 1/88 and 1/89 and clarified the sampling mechanism by requiring sampling to be undertaken in accordance with Section 52A(2). However, the Court held that this subsequent notification could not be applied retrospectively to the case before it.

Supreme Court in Mohanlal: Section 52A Does Not Brook Delay

• A central precedent considered by the Delhi High Court was Union of India v. Mohanlal, (2016) 3 SCC 379.
• The Supreme Court had recognised the conflict between the statutory mechanism under Section 52A and the Standing Orders relating to sampling. Nevertheless, it stressed that once contraband is seized, the authorised officer should approach the Magistrate for sampling and certification without loss of time.
• The Delhi High Court extracted the Supreme Court’s conclusion that although there was no basis for reading an exact statutory timeframe into Section 52A, an application for sampling and certification should nevertheless be made without undue delay.
• This distinction became crucial.
• The absence of a fixed number of days in Section 52A did not, according to the Delhi High Court, give the investigating agency unlimited discretion regarding when to approach the Magistrate.

Court: Reasonable Time Must Be Read Into Section 52A

The High Court framed the central question as:

What constitutes a reasonable time for making an application to the Magistrate under Section 52A, and what is the effect of delay?

• After examining the statute, Standing Orders and Supreme Court jurisprudence, the Court held that a reasonable timeframe must be read into Section 52A(2).
• The Court rejected the proposition that because the legislation does not expressly specify a deadline, investigating authorities could take an indefinite amount of time to initiate the statutory sampling process.
• It observed that the seizure, quantity and quality of contraband constitute crucial evidence in NDPS proceedings and that drawing and certification of samples in the presence of a Magistrate are of utmost importance.

Delhi High Court Suggests 72 Hours or Near About as Desirable Period

• One of the most significant aspects of the judgment appears in paragraph 28.
• The Court recognised that what constitutes reasonable time will depend upon the circumstances of each case. Nevertheless, taking guidance from Standing Order 1/88, Justice Jasmeet Singh held that:
• it is desirable that an application under Section 52A should be made within 72 hours or near about the said timeframe.
• The Court was careful not to convert this observation into an inflexible statutory deadline. Rather, it used the Standing Order as a guide for assessing whether the delay was reasonable.
• This makes the judgment important for both prosecution agencies and defence lawyers dealing with NDPS cases involving delayed sampling.

Why Delay in Sampling Matters

• The Court’s concern was fundamentally linked to the integrity of physical evidence.
• Where seized narcotic substances remain in the custody and control of the prosecuting agency for an extended period before the statutory sampling process is completed, questions may arise regarding preservation and the possibility of tampering.
• The Court relied upon Rishi Dev @ Onkar Singh v. State, 2008:DHC:1513, where the Delhi High Court had stressed the importance of sending samples for testing promptly because delay can create the possibility of interference with material kept in the police malkhana.
• In Kashif, the Court concluded that non-compliance with Section 52A within a reasonable time could create an apprehension that the sample may have been tampered with. It further observed that where a sample is wrongly drawn, the benefit of doubt must accrue to the accused, while the prosecuting agency would have to establish at trial that the sample remained immune from tampering.

51-Day Delay Held Clearly Unreasonable

• Applying these principles to the facts, the High Court noted that the last seizure was made on 2 March 2022, whereas the application under Section 52A for drawing samples and certification was filed only on 22 April 2022.
• The delay was therefore 51 days.

The Court held categorically that:

“A period of 51 days, by no stretch of imagination, can be called a reasonable period”

• for filing a Section 52A application.
• The Court also found it significant that the NCB had furnished no reasons explaining the 51-day delay.

Investigating Agency Must Explain Delay

• The Court further observed that an application under Section 52A for sample collection is not a highly technical proceeding requiring elaborate factual or legal pleadings.
• It characterised it as being more in the nature of a clerical application and held that it should mandatorily be moved within a reasonable time.
• The Court stated that the application must be moved at the earliest, and if it is not, the authorities must explain the reasons for the delay.
• This aspect of the judgment is particularly significant because it places an evidentiary and procedural burden upon investigating agencies to account for unexplained delay.

Standing Orders Cannot Be Blatantly Flouted

• The judgment also relies significantly upon the Supreme Court’s decision in Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417.
• The Supreme Court in Noor Aga had emphasised that guidelines issued under legal authority cannot simply be ignored and that substantial compliance with such guidelines is important, particularly in penal proceedings.
• The Delhi High Court noted that NDPS punishments are punitive and stringent, making procedural safeguards particularly important in balancing the rights of an accused.
• The Court further referred to its earlier decision in Laxman Thakur v. State, BAIL APPLN. 3233/2022, 2022/DHC/005591, where Standing Order 1/88 had been treated as mandatory.

Earlier Delhi High Court Decisions Considered

• The Court examined several earlier decisions concerning NDPS sampling.
• In Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080, bail had been granted where the sampling procedure followed by the investigating agency conformed neither to Section 52A nor to the relevant Standing Orders.
• The NCB, on the other hand, relied upon Arvind Yadav in JC Through His Pairokar v. Govt. of NCT Delhi Through Standing Counsel, BAIL APPLN. 1416/2021, 2021:DHC:1965, where a coordinate Bench had declined to grant bail merely because samples had been drawn without the Magistrate’s presence, leaving the effect upon the sanctity of the samples to be examined at trial.
• The Court distinguished the issue before it by focusing upon the reasonable apprehension regarding preservation or tampering arising from prolonged delay.

Section 52A Violation Held to Vitiate Sample Collection Procedure

After considering the entire statutory and judicial framework, the Court reached a clear conclusion:

Violation of Section 52A vitiated the sample collection procedure, and the benefit had to accrue to the applicant.

• The Court also rejected the contention that the applicant could not raise the objection because he had failed to object when the Section 52A application was eventually moved.
• Justice Jasmeet Singh held that since the objection was a legal objection, it could be raised at any stage.

Section 37 Embargo Held Inapplicable to the Applicant

• The Court also considered the stringent bail restrictions contained in Section 37 of the NDPS Act.
• It noted that Kashif had been in custody since 7 March 2022, no further custodial interrogation was required, and no recovery had been made from the applicant or at his instance.
• On these facts, the Court held that the embargo under Section 37 was not applicable to the applicant.

Bail Granted Subject to Stringent Conditions

• The High Court ultimately allowed the bail application.
• Kashif was directed to furnish a personal bond and surety bond of ₹25,000 each, subject to the satisfaction of the Trial Court.
• Among other conditions, he was required to appear before the Court when required, keep his mobile number operational, join investigation when called, inform the authorities of any change of address, refrain from leaving the country and surrender his passport, if any.
• He was also prohibited from engaging in criminal activity, contacting prosecution witnesses or tampering with evidence.
• The Court expressly clarified that its observations were made only for deciding the bail application and would have no bearing on the merits of the case at trial.

Key Case Laws Referred to in the Judgment

Case	Citation	Principle/Context
Tofan Singh v. State of Tamil Nadu	Criminal Appeal No. 152/2013, decided 29.10.2020	Admissibility of statements under Section 67 NDPS Act
Basant Rai v. State	2012 SCC OnLine Del 3319	Sampling procedure
Gaunter Edwin Kircher v. State of Goa	AIR 1993 SC 1456	Sampling from seized packets
Union of India v. Mohanlal	(2016) 3 SCC 379	Section 52A sampling/certification without undue delay
Noor Aga v. State of Punjab & Anr.	(2008) 16 SCC 417	Substantial compliance with Standing Orders
Chief Information Commissioner v. State of Manipur	(2011) 15 SCC 1	Statutory interpretation/procedure
Arvind Yadav v. Govt. of NCT Delhi	2021:DHC:1965	Effect of Section 52A non-compliance at bail stage
Amani Fidel Chris v. NCB	2020 SCC OnLine Del 2080	Bail and defective NDPS sampling
Laxman Thakur v. State	2022/DHC/005591	Mandatory character of Standing Order 1/88
Rishi Dev @ Onkar Singh v. State	2008:DHC:1513	Delay, sample preservation and possibility of tampering

The judgment also reproduces, through Chief Information Commissioner, references to Taylor v. Taylor, (1875) 1 Ch D 426 (CA); Nazir Ahmad v. Emperor, AIR 1936 PC 253 (2); Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; and State of U.P. v. Singhara Singh, AIR 1964 SC 358, on the principle that where law prescribes a particular manner of doing something, the prescribed procedure should be followed.

Key Legal Takeaways from Kashif v. NCB

• The judgment establishes several important propositions for NDPS proceedings.
• First, the mere fact that Section 52A does not prescribe an express numerical deadline does not permit indefinite delay in approaching the Magistrate.
• Second, an application for sampling and certification must be made at the earliest and within a reasonable period.
• Third, taking guidance from Standing Order 1/88, the Delhi High Court considered 72 hours or near about that period desirable for making a Section 52A application. This should, however, be understood in the context of the Court’s simultaneous observation that reasonableness depends upon the facts and circumstances of each case.
• Fourth, unexplained delay can raise legitimate concerns regarding preservation and possible tampering of the seized material.
• Fifth, where delay occurs, the investigating agency should provide an explanation.
• Sixth, procedural safeguards assume heightened significance under the NDPS Act because of the severity of the punishments and stringent statutory regime.

Why This Judgment Matters

• Kashif v. NCB is significant not merely because bail was granted, but because it attempts to give practical meaning to the Supreme Court’s requirement in Mohanlal that Section 52A proceedings be initiated “without undue delay.”
• The Delhi High Court did not formally rewrite Section 52A by inserting a rigid statutory limitation period. Instead, it harmoniously read Section 52A with the applicable Standing Order and concluded that the absence of an express deadline cannot allow the prosecution to keep seized contraband under its exclusive custody indefinitely before seeking Magistrate-supervised sampling.
• For investigating agencies, the ruling underlines the importance of prompt Section 52A applications, proper sampling, preservation of the chain of custody and documentation of reasons for any unavoidable delay.
• For accused persons, it reinforces the proposition that procedural safeguards relating to the integrity of seized narcotic substances are not merely technical formalities, particularly where the prosecution’s case depends upon the identity, quantity and chemical composition of the alleged contraband.

Conclusion

The Delhi High Court’s judgment in Kashif v. Narcotics Control Bureau, BAIL APPLN. 253/2023, is an important authority on the relationship between Section 52A of the NDPS Act, Standing Order 1/88 and timely Magistrate-supervised sampling. The Court found that the NCB had approached the Magistrate only 51 days after the last seizure, without furnishing reasons for the delay.

Such a period, the Court held, could not be considered reasonable. It consequently held that the Section 52A violation vitiated the sample-collection procedure and that the benefit should accrue to the applicant.

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Source: Delhi High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi