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TMI Blog2021 (12) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... Dube, AOR Mr. Anand Grover, Sr. Adv. Ms. Tripti Tandon, Adv. Mr. Satbir Singh Pillania, Adv. Mr. Sandiv Kalia, Adv. Mr. Nand Ram, Adv. Mr. Somvir Deswal, Adv. Ms. Reena Rao, Adv. Dr. Sushil Balwada, AOR For the Respondent : Ms. Aishwarya Bhati, ASG Mr. Rupesh Kumar, Adv. Mr. Archna Pathak Dave, Adv. Mr. Rajat Nair, Adv. Ms. Deepabali Dutta, Adv. Mr. Mukesh Kumar Maroria, AOR ORDER HIMA KOHLI J. 1. By this common order, we propose to dispose of two Petitions for Special Leave to Appeal filed against the common judgment and order dated 15th July, 2021 passed by the learned Single Judge of the High Court of Madras. SLP(Crl) No. 5703/2021 has been filed by Bharat Chaudhary Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] - employee of A-1 and after recording their statements, booked them for the offences under Section 8(c) punishable under Sections 22(c), 25, 28 and 29 of the NDPS Act and arrested them on 18th October, 2019. Based on the statements made by A-1 and A-3 that they had colluded with suppliers in Nagpur and Rajasthan and procured tablets composed of psychotrophic substances for exporting and sending through courier service to customers in USA under the guise of herbal tablets, on orders received from Bharat Chaudhary [A-4], officers of DRI, Jaipur Unit conducted a search at his residence at Jaipur on 16th March, 2020 and seized some incriminating material. Thereafter, he was arrested on 17th March, 2020 for contravening the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy either as a narcotic or psychotrophic substance so as to fall within the ambit of the NDPS Act; (vi) The first test report received by the DRI on 21st November, 2019, revealed that the tablets were actually sexual enhancement drugs and not covered under the NDPS Act and the test report in respect of 26 tablets sent to CFSL, Hyderabad, was still awaited. 5. Being mindful of the recent verdict of a Three Judge Bench of this Court in Tofan Singh v. State of Madras [2021] 4 SCC 1 wherein as per the majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act, the learned Special Judge, EC & NDPS Cases, Chennai granted bail to Bharat Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis was laid on the total quantity of the contraband seized and it was held that once the test reports showed that some of the tablets contained narcotic substances, it was sufficient to refuse bail to A-4. Critical of the approach of the trial Court that held that since the test reports were not filed by the prosecuting agency along with the complaint, the benefit ought to enure in favour of A- 4, the High Court observed that, by the time the Special Judge, EC & NDPS Cases had pronounced the order on 2nd November, 2020, test reports were available and ought to have been taken into consideration. 7. Appearing for Bharat Chaudhary [A-4], Mr. Gopal Shankaranarayanan, learned Senior Advocate has assailed the impugned order contending that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment which do not fall under the ambit of the NDPS Act and that Standing Order 1/89 issued by the Government of India under Section 52A of the NDPS Act has been completely disregarded inasmuch as the samples were not drawn on the spot and/or recovered from the premises of A-1, nor were the samples drawn in the office of DRI in the presence of the accused and the Panchas. It was canvassed that the sanctity and integrity of the seizure made is highly doubtful on account of failure on the part of the prosecuting agency to follow the procedure prescribed in Sections 42 and 52 of the NDPS Act. It was also argued that the information received and recorded in the present case, was in respect of the alleged export of the psychotropic substances fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that "quantitative analysis of the samples could not be carried out for want of facilities". In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this prelimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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