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TMI Blog2023 (5) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... office, it was informed that said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary who was arrested on 25.02.2022. He disclosed that the said parcel was booked on the IDs of Mr. Nishu Bhatnagar for one Tamir Ali i.e., Applicant belonging to Lucknow. 4. On 04.03.2022, the accused Ganesh Chaudhary tendered another statement wherein he disclosed that he booked the parcels of NRx tablets to USA on the directions of the Applicant i.e, Tamir Ali and Kashif, both resident of Lucknow. 5. NCB team reached Lucknow to arrest the Applicant who was apprehended near Transport Nagar Metro Station, Lucknow on 06.03.2022 on identification by Ganesh Chaudhary. 6. On the Applicant‟s disclosure statement tendered on 06.03.2022, he named three of his associates namely Kashif, Mohd Rizwan Siddiqui @ Shaan and Mohd Zahid Khan, but all three had left for Shimla and would return to Lucknow via Delhi on 06.03.2022. NCB constituted the team and all were intercepted near Jewar Toll Plaza. He further revealed that he used to procure illegal NRx tablets from Mohd Rizwan Siddiqui@ Shaan and Mohd Zahid Khan and thereafter, he packed these drugs into lace rolls and food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection." v. Relying on the Supreme Court‟s decision in Noor Aga v. State of Punjab &Anr. in CRIMINAL APPEAL NO. 1034 OF 2008, (2008) 16 SCC 417, the learned counsel states that guidelines in the Standing Order cannot be flouted and should be substantially complied with. vi. It is submitted that the sampling procedure was vitiated. He relies on the judgment of Hon‟ble Supreme Court in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) in which it was stated that sample from the seized contraband has to be taken from each packet/lace roll whereas, in the present case sample was not taken from each lace roll. vii. Lastly, he states that there is no whisper in the entire complaint of „source‟ from where these tablets were procured by the Applicant and/or co-accused persons. No recovery has been effected from the Applicant and no evidence has been brought forth to show direct money transactions between the Applicant, co-accused, Ganesh Chaudhary and/or overseas customers. 9. Opposing the bail applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HC:3438) held that the ambiguity between Standing Order 1/88 and Section 52A is to be resolved through a harmonious reading of the two. Application under section 52A should be made within reasonable time for certification and drawing of sample. The relevant paras read as under: "15. The aforesaid discussion makes it clear that Section 52A NDPS does not give a time frame within which application has to be made for collection of sample to the magistrate. The time frame is provided in Standing Order 1/88 and that too, only in the context of sending the sample to FSL. ...... 18. In Mohanlal (supra), the Hon'ble Supreme Court in para 19 has opined that "...The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay...". What is reasonable has been left open by the Apex Court in the said judgment. 19. It cannot be the intent of the legislature that since no time limit is mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nale behind a stringent time frame for sample collection by stating: "8....The above passage shows that there is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. ...... 19. This Court is unable to agree with the approach adopted by the trial court, especially its observations highlighted above. The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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