Introduction
The Supreme Court in its recent order has come face to face with a new dilemma concerning the four-decade old Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), which is now surrounded by claims of ambiguity, arbitrariness and unjustness. Recently, the Supreme Court, in its deliberations, has encountered critical questions about the Act’s implementation, especially in relation to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”) upon the failure of police to produce a Forensic Science Laboratory report (“FSL Report”) which is a document which is prepared by a forensic expert after a scientific analysis of, in this case, substances which have been seized.
The Court was hearing the issue that whether an accused should be granted a default bail in case where a FSL Report is not furnished within 15 days of the collection of seized samples. Advocates appearing on behalf of the petitioner contended that under Rule 14 of NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022, the FSL Report has to be produced to the Magistrate’s Court within 15 days from the receipt of the sample of the seized substance.
However, procedural challenges under the NDPS Act extend beyond delays in FSL Reports. The issue of short period of appeal under Section 68O of the NDPS Act has sparked various debates regarding its unjustness especially while we compare it with other allied acts such as the Prevention of Money Laundering Act, 2002 (“PMLA”) and Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (“SAFEMA”) where the appeal period is much more relaxed and liberal in nature. This article aims to explores the possibility of default bail where a FSL report is not produced by the prosecution and the less-discussed, arbitrary period of appeal to the Forfeited Property Tribunal. Furthermore, it tries to emphasise that a hard and fast rule should not be adopted for rejection of appeals solely on the basis of a delay which can arise from circumstances which are not under one’s control.
Forensic Science Laboratory Reports: The Baluster of Justice
In relation to FSL Reports, Justice Dhulia observed that “We don’t know how it’s made because we’re not scientists. Now, if the time frame is 15 days, it indicates that such a report can be prepared without any issues, so why the delay?” This statement underscores the critical role that FSL reports play in ensuring timely justice, particularly in the context of prison advocacy and the rights of the accused. In the case of Thana Singh v. Central Bureau of Narcotics, the Supreme Court directed states to establish dedicated laboratories specifically for NDPS cases and a monitoring agency to prevent unnecessary trial delays. Justice Suryakant further emphasised on solutions and appointed a Nodal officer to resolve the issue at the earliest.
It is pertinent to note that FSL reports are not explicitly mentioned under Section 173(2) of the CrPC, however unnecessary delay is still not invited, as they are important to prove the case of prosecution. Hon’ble Punjab & Haryana High Court in one of the cases held that FSL Reports form the foundation of the case of prosecution and where the same is not produced before the court the entire case of prosecution falls to ground.
Section 167(2) of CrPC provides police a period of 180 days to complete their investigation. Cases such as that of Kishan Lal v. State denied default bail to the accused person merely because of failure of the prosecution to produce a time-bound FSL Report. However, recently in 2023, the same court in its order granted relief to the accused. This shift was further reinforced in the case of Arif Khan v. State (Govt. of NCT of Delhi) and Directorate of Enforcement v. Manpreet Singh Talwar.
FSL Reports are important in criminal trials which helps in insuring timely justice. Although not being explicitly mandated under Section 173(2) OF CrPC, their delay only weakens the case of the prosecution. The courts have differed on granting bail to the accused, but recent rulings have leaned towards providing relief to the accused.
Forfeiture and Fairness: Navigating the Contentious Appeal Period Under Section 68-O
Section 68O (1) of the NDPS Act provides for a period of 45 days along with a condonation period of 15 days for filing an appeal to the Forfeited Property Tribunal for the property which was forfeited following the provisions under Chapter VA of the NDPS Act. A notable contrast arises when we compare it to PMLA and SARFAESI Act, where the same period is much more relaxed. Both the PMLA and SARFAESI have provisions that intersect with the NDPS Act, particularly in cases where an offence results in the forfeiture of property. Any appeal against such forfeiture lies exclusively before the Forfeited Property Tribunal.
Section 26 (3) of the PMLA provides that an appeal can be taken within 45 days from the date on which a copy of the order is received. The difference in the periods arises when we come to the proviso to the Section. It provides for a condonation of delay where exceptional or reasonable circumstances arise. The same nature of language is followed under Section 42 of the PMLA which provides for a period of about 120 days which stands more than sufficient in any cases where exceptional situations arise, thus being more justful than the NDPS Act. In the case of Shri Noor Ahmed Khan v. The Deputy Director, the Hon’ble Karnataka High Court was of the opinion that the phrase “sufficient cause” finds its place under Section 5 of the Limitation Act, 1963, and held that such situations should receive a liberal interpretation rather than a pedantic approach. The same was held in the case of G. Ramegowda, Major, Etc v. Special Land Acquisition Officer. Substantial Justice shall always prevail over technicalities and it should be the top most priority of the justice system in India. The Supreme Court also held that where substantial justice and technical considerations are pitted against each other, substantial justice shall be preferred over the latter.
In this scenario, Rule 6(7) of The Appellate Tribunal for Forfeited Property (Procedure) Rules, 1989 do provides some relief for situations where the registrar is given the power to place the appeal before the Chairman who may direct the petition or the appeal to be posted before the Tribunal for consideration. However, this rule is not followed in practice, which can be referred from the fact that there exists not a single case authority where the Tribunal condoned the delay after 60 days. The appeals are placed before the Chairman but has always been disregarded as something which is always the fault of the alleged person even where delay is not on their part but due to stressful formalities of the Tribunals.
Bridging the Gaps: Reforms for These Dual Hardships
These ambiguities in the NDPS Act, particularly which concern the delay in FSL Reports and the arbitrary appeal period requires a combination of both judicial reforms and legislative intents. The Supreme Court should intervene in the long-standing cases for rights of the alleged persons in both of the cases of default bail and forfeited properties. There is an urgency needed for this matter to be solved, since numerous other pending similar matters which are pending before the Apex Court stand alone on the outcome of this particular case.
In the present case, interim orders are however given to grant interim reliefs to the parties. There should be a mandatory compliance of the 2013 guidelines of Supreme Court. Further, increasing the total number of Central FSLs will help in providing fast and speedy FSL Reports ultimately assisting in finding a solution to the issue of grant of default bail. This will stand true especially in states such as Maharashtra and Punjab where such cases are the highest. Another directive which was given in the same case called for the establishment of monitoring bodies to oversee case progress.
No matter what the exceptional circumstance which arise when we perceive the subjectivity of each situation, the current appeal period even when we add the 15-day relief is still not enough in practicality. The legislative intent is in question here since the other acts such as The SARFAESI Act and the PMLA provides for greater window to file appeal. There is a need for a liberal interpretation of appeal period of forfeited property to the tribunals.
Conclusion
The NDPS Act despite its benefits, faces significant challenges in its implementation which particularly concern default bail due to delay in FSL reports and rigid period of appeal under Section 68-O of the NDPS Act. The necessity of FSL Reports in NDPS Act cases is undeniable. The inconsistency which can be observed through judicial interpretations showcases the needs for a clearer legal standard. The Supreme Court’s directive which is much awaited following the appointment of one of the nation’s best criminal lawyer as the nodal officer of the case offers a ray of hope. An effective compliance of 2013 directives to establish dedicated Central FSLs and agencies is the need of the hour.
Moreover, the appeal period under Section 68-O remains a challenge in this contention, especially when we compare them to more flexible provisions under PMLA and SARFAESI Act. The rigid timeline when combined with practical difficulties in approaching the Tribunal results in injustice which is not much talked about in the mainstream media. While we do demand that the framework should ensure efficiency, it must not come at the cost of substantive justice. For these reasons, such procedural systems are condemned by the courts of law to the effect that strict adherence to technicalities cannot be at the detriment of justice or fairness of the situation.
This blog is written by Ayushman Shrivastava, 2nd-Year-Student, Hidayatullah National Law University (HNLU), Raipur