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"text": "1. This is an application seeking regular bail in FIR No. 0021/2022 dated\n26.02.2022 u/s 20/29 of the NDPS Act registered at PS Crime Branch.\n2. It is stated by Mr. Aggarwal that in the present case, the procedure for\ncollection of sample is faulty and in violation of standing order 1/88 of the\nguidelines of NCB. To substantiate his arguments, he has drawn my\nattention to the seizure memo, wherein it has been stated as under:\n“Before the following witnesses at 1st Floor, H No. RZ-20P / H No.\n6, Gali No. Zero, East Sagarpur, two persons from Delhi, Ajit\nRasulpur, Distt Chapra, Bihar, Age-26 Years and Laxman Thakur\nRasulpur, Distt Chapra, Bihar, Age-52 Years were arrested on the\nbasis of mukhbari and searched in compliance with all legal\nprovisions. During the search, person namely Ajit Kumar took off\nthe black pithu bag from the shoulder, which on opening the bag\nand checking, a total of 6 packets covered with brown color tape\nwere found from the bag and all the packets were found to contain\nlight moisture grassy material with flowers and seeds, which was\nfound to be ganja on the basis of smelling and physical properties,\nwhich after weighing all 6 packets, 2/2 kg ganja was found in all\n(total 12 kg ganja) after which we put the ganja found in all 6\npackets in a white big sack/ katta and tied the mouth of the sack/\nkatta with the help of white cloth and a pulinda was made and\nsealed with the stamp of MK and marked as mark „A‟ After this,\nthe black bag held in Laxman's hand was checked, on which\nTYCOON4 is written on the bag with white thread embroidery, in\nwhich there are a total of two pockets on which there are chains.\nOn checking the packets, transparent plastic layer was found under\nbrown color tape and in all the packets, light sealed grass-like\nsubstance with flowers and seeds was found to be ganja on the\nbasis of smelling and physical properties, which after weighing all\n5 packets, all of them got 2/2kg ganja (total 10 kg ganja) which all\nPut the ganja found in 5 packets in another white sack/ katta and tie\nthe mouth of the katta with the help of a white cloth and a pullanda\nwas made and sealed with the stamp of MK , which was given mark\nB. After this, all the 11 packing materials and the above two black\nbag were put together in a white bag and the mouth of the katta was\ntied with the help of white cloth and a pulanda was made and\nsealed with the stamp of MK, which was given the mark C. After\nthat all the above pulanda mark as A, B and C were taken into\npolice custody.\n3. As per the said seizure memo, the 12 Kg Ganja recovered from 6\npackets in possession of Ajit Kumar were mixed and also 5 packets of 2 Kgs\neach found from the applicant were mixed and thereafter were sealed.\n4. Mr. Aggarwal has relied on a judgment of „Basant Rai vs. State‟ in\nCrl. Appeal 909/2005 as well as „Santini Simone vs. Department of\n5. Per contra, Mr. Chauhan, learned APP has relied on the judgment of\nSupreme Court titled as „Sumit Tomar vs. The State of Punjab‟[(2013) 1\nSCC 395] and more particularly paras 11 & 12 which reads as under:\n“11. The next contention, according to the learned Senior Counsel\nfor the appellant, is that the prosecution has committed an\nirregularity by mixing up the contraband found in the bags and\ntaking samples thereafter. We find no substance in the said argument.\nThe present appellant was driving the car in which two bags of\ncontraband were loaded. He further pointed out that in view of\nSection 15(c) of the NDPS Act, which prescribes minimum sentence\nof 10 years and which may extend to 20 years where the\ncontravention involves commercial quantity, the mixing of two bags\nis a grave irregularity which affects the interest of the appellant. We\nare unable to accept the said contention.”\n12. It is true that Section 15 of the NDPS Act speaks about\npunishment for contravention in relation to poppy straw. As per sub-\nsection (a) where the contravention involves small quantity, the\nrigorous imprisonment may extend to six months or with fine which\nmay extend to ten thousand rupees or with both whereas under sub-\nsection (b) where the contravention involves quantity lesser than\ncommercial quantity but greater than small quantity, rigorous\nimprisonment may extend to 10 years and with fine which may extend\nto one lakh rupees. Sub-section (c) provides that where the\ncontravention involves commercial quantity, the rigorous\nimprisonment shall not be less than 10 years but which may extend to\n20 years and shall also be liable to fine which shall not be less than\none lakh rupees but which may extend to two lakh rupees. Merely\nbecause different punishments have been prescribed depending on\nthe quantity of contraband, we are satisfied that by mixing the said\ntwo bags, the same has not caused any prejudice to the appellant.\nEven after taking two samples of 250 gm each, the quantity measured\ncomes to 69.50 kg which is more than commercial quantity (small\nquantity 1000 gm/commercial quantity 50 kg and above). In view of\nthe same, the contention that the police should have taken two\nsamples each from the two bags without mixing is liable to be\n6. I have heard learned counsel for the parties.\n7. The judgment of Sumit Tomar (supra) has been duly considered by\nthe Coordinate Bench of this Court titled in a judgment titled as „Santini\nSimone vs. Department of Customs‟ [2020 SCC OnLine Del 2128] and\nrelevant paras read as under:\n“57. In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, the Court\nwas examining the case where according to the prosecution, two\nplastic bags containing „bhooki‟ opium powder were recovered from\nthe dickey of the car. The contents of both the bags were mixed and\ntwo samples of 250 grams each were taken out. The remaining\ncontraband weighing 69.5 kgs were sealed in two bags and the\nsamples were sent to Forensic Science Laboratory for examination. It\nwas contended on behalf of the appellant that the procedure followed\nby the concerned seizing officials was irregular and the alleged\ncontraband could not be mixed and the samples taken thereafter. It\nwas contended that since the punishment is based on the quantity of\ncontraband recovered, mixing of substances from two bags was\nunacceptable. The said contention was rejected. The Court held that\nmerely because different punishments have been prescribed\ndepending on quantity of the contraband, the same has not caused\nany prejudice to the appellant. The Court reasoned that even after\ntaking two samples of 250 grams each, 69.5 kgs of contraband was\nstill available.\n58. In Amani Fidel Chris (supra), four brown colour packets were\nallegedly recovered. The said packets contained powdery substances,\nwhich on being tested, yielded a positive result for heroin. The\nsubstances were then mixed properly and weighed with the help of an\nelectronic machine and it was found that the same weighed 1.5 kgs.\nThereafter, two samples of 5 grams each were drawn from the\nrecovered substance and put into zip lock pouches. It was contended\nthat the procedure adopted was not permissible. The procedure of\ntransferring the contents of all four packets into one and then\ndrawing a sample from the mixture had caused a serious prejudice,\nas it could not be ascertained whether the four packets contained the\nalleged narcotic. The Court found that the procedure adopted fell\nfoul of the Standing Order No. 1/88 dated 15.03.1988 issued by the\nNarcotics Control Bureau (which was pari materia to Standing\nOrder 1/1989 dated 13.06.1989, issued by Department of Revenue,\nMinistry of Finance, Government of India). The Court held that\nwhere more than one container/package is found, it is necessary that\nsamples be drawn from each separate container/package and be\ntested with a field-testing kit. If the container/packages are identical\nin shape, size and weight then lots of 10 or 40 container/packages\nmay be prepared. Thereafter, representative samples from each\ncontainer/package be drawn.\n59. In Basant Rai (supra), a Coordinate Bench of this Court\nconsidered a case where the accused was allegedly found carrying a\npolythene bag, containing eight smaller polythene bags, containing a\nbrown colour substance, which was alleged to be charas. The\nInvestigating Officer had taken small pieces from each packet and\nmixed the same and thereafter, drawn two samples which were sent\nto FSL for analysis. The Court found fault with the said procedure\nand allowed the appeal. The Court held as under:\n“25. After hearing both the learned counsel for parties and going\nthrough the Trial Court Record, I find force in the submission of\nlearned counsel for appellant. Admittedly, the samples were drawn\nafter breaking small pieces from 08 of the polythene bags which were\nallegedly kept in a green coloured bag by the appellant in his right\nhand. The IO prepared two samples of 25 grams each after taking a\nsmall quantity from each of the slabs.\n26. Though the settled law is that if it is not practicable to send the\nentire quantity then sufficient quantity by way of samples from each\nof the packets of pieces recovered should be sent for chemical\nexamination. Otherwise, result thereon, may be doubted.\n27. For example, if the 08 packets were allegedly recovered from the\nappellant and only two packets were having contraband substance\nand rest 6 packets did not have any contraband; though all maybe of\nthe same colour, when we mix the substances of all 8 packets into one\nor two; then definitely, the result would be of the total quantity and\nnot of the two pieces. Therefore, the process adopted by the\nprosecution creates suspicion. In such a situation, as per settled law,\nthe benefit thereof should go in favour of the accused. It does not\nmatter the quantity. Proper procedure has to be followed, without\nthat the results would be negative.”\n60. In Edward Khimani Kamau (supra), a Coordinate Bench of this\nCourt rejected the procedure where the substance found in nine\npackets was transferred into one packet and two samples were drawn\nfrom the same. The Court held that it could not be ascertained that\nall nine packets contained heroin.\n61. In Charlse Howell @ AbelKom (supra), the NCB had allegedly\nrecovered 330 grams of heroin. The powder recovered was packed in\n166 polythene strips, which were concealed in the laces/hem of\ntwo lehengas. The concealed powder from the 166 strips was\ncollected in a transparent polythene and on weighing, it was found to\nbe 330 grams. Two samples of five grams were drawn and put\nseparately in zip lock polythene pouches. A Coordinate Bench of this\nCourt following the decision of the Supreme Court in Union of\nIndia v. Bal Mukund, (2009) 12 SCC 161, held that the procedure\nadopted was not in conformity with the Standing Order 1/88 dated\n15.03.1988, issued by the Narcotics Control Bureau.”\n8. I am of the view that as mandated by the Hon‟ble Supreme Court in\njudgment of „Union of India vs. Bal Mukund & Ors.‟ [(2009) 12 SCC 161],\nstanding order 1/88 has been opined to be a “requirement of law”.\n9. The 3 Bench judgment of Bal Mukund (supra) is binding on this\n10. Relevant portion of Standing order 1/88 reads as under:\n“2.4 In the case of Seizure of a single package/container, one\nsample (in duplicate) shall be drawn. Normally, it is advisable to\ndraw one sample (in duplicate) from each packet/container in\ncase of seizure of more than one package/container.”\n11. The standing order 1/88 mandates that the transferring of content of\nall packets into one and then drawing a sample from the mixture is not\npermitted.\n12. I am of the view that in the present case, the instructions in 1/88 has\nnot been followed and the sample has been drawn after mixing the contents\nof various packets into one container. The same has caused serious prejudice\nto the case of the applicant. Since the collection of sample itself is faulty, the\nrigours of Section 37 of the NDPS Act will not be applicable.\n13. The applicant is in custody since 26.02.2022 and has no criminal\nantecedents. He has no criminal cases of any nature pending against him.\n14. For the aforesaid reasons, I am inclined to allow the application. The\napplicant is entitled to be released on bail in FIR No. 0021/2022 dated\n26.02.2022 u/s 20/29 of the NDPS Act registered at PS Crime Branch on the\nfollowing terms and conditions:\ni. The applicant shall furnish a personal bond and a surety bond in\nthe sum of Rs. 25,000/- each, to the satisfaction of the Trial Court;\nii. The applicant shall appear before the Court as and when the matter\nis taken up for hearing;\niii. The applicant shall join investigation as and when called by the I.O\niv. The applicant shall provide his mobile number to the Investigating\nOfficer (IO) concerned, which shall be kept in working condition\nat all times. The applicant shall not switch off, or change the same\nwithout prior intimation to the IO concerned, during the period of\nv. The applicant shall report to the local Police Station on the first\nMonday of every month;\nvi. In case the applicant changes his address, he will inform the IO\nconcerned and this Court also;\nvii. The applicant shall not leave the country during the bail period and\nsurrender his passport, if any, at the time of release before the I.O.\nviii. The applicant shall not indulge in any criminal activity during the\nix. The applicant shall not communicate with, or come into contact\nwith any of the prosecution witnesses, or tamper with the evidence\nof the case.\n15. The observations made hereinabove are only for the purpose of\ndeciding the bail application and will have no bearing on the trial.\n16. The application is disposed of in the above terms.", |
