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2021 (2) TMI 830 - HC - CustomsSmuggling - prosecution has mixed all the packets and thereafter, sent to FSL for examination - offences under Sections 8/22/23/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- In Basant Rai [2012 (7) TMI 1115 - DELHI HIGH COURT], while dealing with a case where accused was found carrying a polythene bag containing 8 similar polythene bags having brown colour substance and Investigating Officer took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis and it was held that if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. The fact of the present case is that prosecution has mixed all the packets and thereafter, sent to FSL for examination, which is contrary to the procedure prescribed under the law - This Court is informed that the petitioner is a Somalian National resident and his Refugee Certificate issued by UNHCR (United nation High Commissioner for refugees) was valid till 20/12/2019. Hence, he has a valid document to stay in India at the time of his arrest. He is in judicial custody since 04.02.2019. No doubt the recovered substance in the present case is of commercial quantity, however, the procedure prescribed is contrary to the dictum of this Court. This court is informed by learned counsel for the petitioner that petitioner is not a habitual offender and is not likely to get involved in any other case during bail. Thus, petitioner has qualified twin conditions of Section 37 of NDPS Act. The petitioner deserves bail - petitioner is directed to be released on bail forthwith on his furnishing personal bond in the sum of ₹ 25,000/- with one surety in the like amount, to the satisfaction of the Trial Court - petition allowed.
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