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TMI Blog2024 (4) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... the truck in which they were travelling. Accordingly, the petitioner and the co-accused were apprehended at over bridge DND Ring Road, Delhi with one truck bearing registration number UP81AF7152 containing 116.500 Kg. of cannabis (Ganja) in 05 plastic bags. The petitioner was arrested in the present case on the same day. 4. Accordingly, the present FIR came to be registered and investigation was taken up by ASI Danvir Singh. During investigation, it was disclosed by the petitioner that the said contraband was to be delivered to one Prince, resident of Noida, Uttar Pradesh. 5. On 15.02.2021, proceedings under Section 52A NDPS Act were conducted before the learned Metropolitan Magistrate and samples were taken out from each Pulanda of recovered Cannabis (Ganja). Thereafter, on 16.02.2021 samples were deposited in FSL Rohini vide FSL No. SFSL(DLH)/1629/CHEM/607/21 for obtaining expert opinion which was subsequently received vide SFSL(SLH)/1629/CHEM/607/21 dated 21.06.2021. 6. Investigation qua the owner of the truck was then taken up, whose registered owner was revealed to be Sriniwas R/o Village Ratori, who stated that he had sold the truck to one Pushpender Gupta for Rs. 6 lacs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colour bundles but it has not been specified as to how many bundles were there in each pulanda and from which bundle in pulanda the samples were obtained. To buttress his contention, reliance was placed on the judgment of this Court in Basant Rai v. State of Delhi [Crl. Appeal No. 909/2005.] 12. Per contra, the grant of bail is opposed by Mr. Amol Sinha, ASC for the respondent/NCB, who argued on the lines of the status report. He submits that the offence is of serious nature and the quantity of contraband recovered in the present case is commercial, therefore, the petitioner has to satisfy the twin conditions mentioned in Section 37 of the NDPS Act before being released on bail. He further submits that the CDR's of the petitioner herein were analyzed and it was found that the petitioner had contacted coaccused Sushant @ Badakulu Ladu multiple times whilst he was in Odisha. 13. Mr. Sinha submits that order recording the proceedings under Section 52A of the Act itself records that there is no defect in sampling. Further, the samples were drawn in the presence of the petitioner and his counsel, photography of the inventory has been done and two samples were drawn from each of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrolled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere noncompliance or failure to strictly comply by itself will not vitiate the prosecution." (Emphasis supplied) 19. Reference may advantageously be had to the observations of a Coordinate bench of this Court in Bipin Bihari Lenka v. Narcotics Control Bureau [2022 SCC OnLine Del 1160.] as well, wherein this Court has held that any prejudice which allegedly has been caused to the accused as a consequence of any defect in the sampling procedure so adopted can be appreciated after the examination of the witnesses. The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this court in judgment dated 31.05.2023 in BAIL APPLN. 71/2023 titled Quentin Decon v. Customs, wherein it is held as under: "27. As noted above, the Hon'ble Supreme Court, in Balbir Singh (supra) observed that the provision of Section 52 of the NDPS Act is directory in nature. It was further held that non-compliance of the said provision, in itself, cannot render the actions of the investigating officers as null and void. It would have to be demonstrated that in the facts and circumstances of a particular case, whether such noncompliance caused prejudice to the accused and resulted in failure of justice. It was further held that if there is no proper explanation for non-compliance, then the same will have an effect on the case of the prosecution and the Courts will have to appreciate the evidence and material placed on record in the case in order to determine the issue. Whether noncompliance of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied, will have to be examined considering the nature of violation of such standing procedure and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le." 24. In respect of the contention of the learned counsel that the petitioner had no knowledge of the contraband being present in the truck, it is trite that knowledge of possession of contraband has to be gathered from the facts and circumstances of the case. In the present case, it has been stated by the respondent/prosecution in its status report that the present petitioner had contacted the co-accused namely, Sushant @ Badakulu Ladu numerous times via telephone, when the petitioner was present in Odisha and he was found driving the vehicle from which contraband was recovered. 25. I have also gone through the judgment of this Court in Basant Rai (Supra) as relied upon by the learned counsel for the petitioner. The said judgment was rendered in totally different facts and circumstances at the appellate stage after the testimonies of the witnesses were available to the Court and not at the stage of considering a bail application. Further, in Basant Rai (Supra), the officials of the respondent therein had mixed the contraband which was recovered from 8 packets and made 2 representative samples of the contraband, whereas that is not the position in the present case as no such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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