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TMI Blog2024 (1) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... by this common judgment. Factual Matrix 3. It is the case of the prosecution that, on 31.10.2022, ASI Sunder Lal alongwith staff was on patrolling duty at Sarai Rohilla Railway Station. At around 2.00 p.m., when the police party reached at the parcel area side at Platform No.1, they found two boys, who were holding a trolley bag each in their hands and were carrying a backpack each. On seeing the police party, the boys started moving towards Dayabasti. On suspicion, both were stopped by the police and were inquired about their luggage. As they could not give a satisfactory answer upon being questioned, their luggage was checked and 8 packets each, wrapped with brown tape, were recovered from the trolley bags carried by each of them, while 4 packets each, wrapped with brown tape, were recovered from the backpacks carried by each of them. Therefore, a total of 12 packets each were recovered from the possession of each of them. 4. Prosecution alleges that these 12 packets were containing dark greenish leaves and seeds, which were looking and smelling like Ganja/Marijuana. From Sandeep @ Chiku (Applicant in Bail Appln 3016/2023), the total quantity recovered was 24kg and 450 grams ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the accused is not guilty of the alleged offence. In support, he places reliance on the judgment of the Supreme Court in State of Kerala & Ors. v. Rajesh and Ors. (2020) 12 SCC 122. 9. He further submits that the purpose of Section 52A of the NDPS Act is for the disposal of the case property after making inventory and keeping the samples of seized contraband. It is for the purpose of keeping representative samples for being exhibited during the course of the trial as primary evidence. He submits that the Standing Orders No.1/88 and 1/89 are merely advisory in nature and not mandatory. Their non-compliance is neither fatal to the case of the prosecution nor does it entitle the accused to be released on bail. The effect of such non-compliance can only be determined at the conclusion of the trial, where the accused would have to show the prejudice caused due to such non-compliance. In support, he places reliance on the judgment of this Court in Masibur Khan v. State (Govt. Of NCT of Delhi) 2023 SCC OnLine Del 3326; Shailender v. State of NCT of Delhi 2022 SCC OnLine Del 4896; and Saddad Alam v. State (Govt. Of NCT Delhi) NC 2023:DHC:7494, and of the High Court of Bombay in Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled 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 subsection (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 sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. The manner of drawing of samples has been laid down in the Standing Order no.1/88. The relevant provisions of which read as under: "1.4 If the drugs seized are found in packages/containers the same should be serially numbered for purposes of identification. In case the drugs are found in loose form the same should be arranged to be packed in unit containers of uniform size and serial numbers should be assigned to each package/container. Besides the serial number the gross and net weight, particular of the drug and the date of seizure should invariably be indicated on the packages. In case sufficient space is not available for recording the above information on the package, a Card Board label, should be affixed with a seal of the seizing officer and on this Card Board label, the above details should be recorded. 1.5 Place and time of drawal of sample: Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 1.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-I, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1,2,3,4 and so on." 17. Almost pari-materia provision is found in the Standing Order No.1/89. The relevant provisions of which are reproduced herein below: "SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC. 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o;secret-drug sample/ Test memo‟ is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. 3.1 After sampling, detailed inventory of such packages /containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes." 18. A reading of the Standing Order No.1/89 would show that all packages/containers are to be serially numbered and kept in lots for sampling. In cases where more than one package/container is seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) SCC OnLine Del 3319; Edward Khimani Kamau v. The Narcotics Control Bureau (2015) SCC OnLIne Del 9860; Charlse Howell @ Abel Kom v. The Narcotics Control Bureau 2018 SCC OnLine Del 10564, held as under: "12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable." 21. In Amina (supra), a Co-ordinate Bench of this Court again considered the effect of the violation of the Standing Order(s), and held as under: "27. From a careful assessment of the decisions cited above and the perusal of the Standing Orders, this Court is of the considered opinion that the Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders are based upon a certain logic which ought to be respected, or else it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of granting bail, the accused is still not proved as guilty and is under trial and therefore deserves the benefit of doubt. 31. Pursuant to appreciation of contentions of the parties as well as documents on record, this Court is of the considered opinion that the petitioner is entitled to be enlarged on bail subject to certain conditions." 22. Another Hon'ble Single Judge of this Court followed the above judgement in similar circumstances and released the accused therein on bail in Ginkala Meddilety (supra). 23. I must herein also note the purported contrary view taken by this Court in Masibur Khan (supra), wherein this Court distinguished the judgment of Bal Mukand (supra), Santini Simone (supra), Edward Khimani Kamau (supra), and Charlse Howell (supra), stating that these were rendered in appeal after completion of the trial, and further held as under: "....Whether non-compliance 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 consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le grounds for believing that the accused is not guilty of the offence alleged against him based on the alleged seizure and sampling. 28. In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. There is also no prior history of any prosecution being pending against the accused persons herein. The accused have already been in custody for more than a year. Both the accused are aged around 20 years and the trial is likely to take long. 29. In my view, therefore, the applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail. Directions 30. Accordingly, it is directed that the applicants be released on bail in FIR No.34/2022 dated 31.10.2022 registered at Police Station, Sarai Rohilla Railway Station, Delhi under Sections 20/61/85 of NDPS Act and Sections 147/149 of the Railways Act, 1989 on furnishing a personal bond in the sum of Rs.50,000/- each with one local surety, each, of the like amount, subject to the satisfaction of the Ld. Trial Court, and further subject to the following conditions: i. The Applicant(s) will n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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