TMI Blog2021 (2) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - BAIL APPLN. 3076/2020 - - - Dated:- 11-2-2021 - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der reference had arrived on 01.02.2019 and immediately Ethiopian Airlines were contacted to submit a copy of AWB and it was found that the goods were mentioned as dry chat in the AWB and the consignee were one AGEL incorporation and the address mentioned there-on was not proper. Since the address looked vague, therefore, the Airlines officials were asked to provide the correct name of the consignee and it was informed that M/S Angel Incorporation was the consignee. Immediately shipments of M/S Angel Incorporation through Air Cargo Imports were checked through ICES system and it was informed that two previous consignments of the said firm pending clearance are as below:- S No. B/E No. Date Description of goods as per B/E Quantity as per B/E (kg) AWB No. Date 1. 9812967 dt. 28.01.2019 Dried green leaf 191.25 071-33613403 dt. 25.01.2019 2. 9786830 dt. 25.01.2019 Green Tea 221.00 071-33613414 dt.23.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods as per MAWBs were found to be packed in 30 cartons, with each consignment containing 10 cartons per MAWBs. The cartons were then opened and examined one by one MAWB wise. The cartons marked Number A-1 to A-10, pertaining to MAWB Number 07133613414 were then examined. It was noticed that one carton was found sealed using lac. All the cartons bearing numbers A-1 to A-10 were then opened and examined. The said one carton bearing lac seal was found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves and one plastic package out of these 10 plastic packages was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. All the other Nine cartons were opened and examined and were found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves. Allegedly, total 100 such plastic packages were found which were also numbered as A-1/1, A-1/2 ..A-1/10 and A-2/1, A-2/2 A-2/10 and so on till A-10/1, A-10/2, ..A-10/10 respectively. The same were declared as Dry Chat in the MAWB wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the net quantity of the suspected Dry Chat leaves, the contents of one carton were emptied and weight of the emptied carton taken which was found to be 2.180 Kg. Thereafter, the contents in one plastic package containing Dry Chat leaves were taken out and the emptied plastic package weighed which was found to be 0.065 Kgs. The total weight of the packing material in respect of the said consignment covered under MAWB No. 07133613403 was found to be 28.300 Kg. and accordingly, the net weight of Suspected Dry Chatt leaves was found to be 193.590 Kgs. 7. Thereafter, the cartons marked Numbers C-1 to C-10, pertaining to MAWB Number 07133613576 were found to contain ten plastic packages of same type of dry leaves suspected to be Dry Chat leaves in 08 such cartons whereas in carton No C-5, there were 07 such plastic packages and in carton No. C-10, there were 08 such packages. In total 95 such plastic packages were found which were also numbered as C-1/1, C-1/2 C-1/10 and C-2/1, C-2/2 C-2/10 and so on till C-10/1, C-10/2 . C-10/8 respectively. The same were declared as Dry Chat in the MAWB whereas no Bill of Entry was filed for the same. The Gross weight of the 10 cartons was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple) and SD2 (for duplicate samples). Corresponding to lot B1 to B10 and SO3 (for original sample) and (SD3 for duplicate sample) Corresponding to lot C1 to C10. Thereafter, the press locked small plastic pouches were further placed inside polythene lined yellow colour paper envelopes which were sealed with the official seal of SIIB Branch, NCH, Delhi bearing No. 2-98 over a paper slip containing the signatures of the panchas Sh. Rajeev Khatri, G-Card holder No. 592/1999 of M/s Ananya Exim and Shri Gaurav Sinha, Inspector in such a way that the same could not be tampered without breaking the seal or damaging the envelope. Test memo No. 37, 38 39 were also prepared for testing of the samples at Central Revenue Control Laboratory, Hill Side Road, Pusa, New Delhi-110012. 11. After completing the given process, the remaining quantity of the homogenous mixture which was lying in the press locked plastic pouch was then kept lot wise in carton serial No. A1, B1 and C1 respectively. Thereafter, the seized suspected Dry Chat leaves excluding the representative samples drawn, were repacked in the same cartons from which they were recovered, pasted with cello tape and wrapped with plasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter mixing all the samples together before drawing any representative samples, the sanctity of the case property in individual packet had lost. Learned counsel relied upon decision of a Coordinate Bench of this Court dated 13.03.2020 in Criminal Appeal No. 1027/2015, titled as Amani Fidel Chris Vs. NCB, wherein the accused was acquitted while observing that mixing of the substance before drawing any sample vitiates the entire sample. In addition, learned counsel also placed reliance upon a decision dated 02.07.2012, pronounced by me in Crl. Appeal 909/2005, titled as Basant Rai Vs. State. 14. Learned counsel next submitted that the petitioner was apprehended on 04.02.2019 and it is an admitted fact that no incriminating material was recovered from his person and that he has been falsely roped in this case without any evidence. It was also submitted that there is no corroborative evidence on record to connect petitioner with the offence in question and out of 41 witnesses, so far only 04 witnesses have been examined by the prosecution and trial of this case is likely to take time and that the entire trial is vitiated due to tampering of the seal by FSSAI and mixing of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which is contrary to the procedure prescribed under the law. 19. 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. 20. Keeping in view the aforesaid fact, I am of the view that petitioner deserves bail. Accordingly, 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. 21. Petitioner shall not directly or indirectly influence the witnesses or tamper with the evidence. 22. Trial cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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