2022 (12) TMI 1435 - HC - Indian Laws

Seeking grant of Regular Bail - smuggling - Ganja - procedure for collection of sample faulty - violation of standing order 1/88 of the guidelines of NCB - HELD THAT - As mandated by the Hon ble Supreme Court in judgment of UOI. VERSUS BAL MUKUND ORS. 2009 (3) TMI 914 - SUPREME COURT standing order 1/88 has been opined to be a requirement of law - The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. Thus 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 - applicant is in custody since 26.02.2022 and has no criminal antecedents. He has no criminal cases of any nature pending against him. The applicant is entitled to be released on bail u/s 20/29 of the NDPS Act registered at PS Crime Branch on the subject to terms and conditions fulfilled - application allowed.

Summary

Issues:
Application for regular bail in a case under NDPS Act based on faulty sample collection procedure.

Analysis:
1. The applicant sought bail in a case under the NDPS Act citing a faulty sample collection procedure as a ground. The seizure memo indicated that the contraband seized from different packets was mixed before samples were taken, contrary to the guidelines.

2. The defense counsel relied on the judgment of 'Basant Rai vs. State' and 'Santini Simone vs. Department of Customs' to support the argument against the mixing of contraband from different packets before sample collection.

3. The prosecution, represented by the learned APP, referenced the Supreme Court judgment in 'Sumit Tomar vs. The State of Punjab' to argue that mixing the contraband from different packets did not prejudice the case, especially considering the quantity involved.

4. The judge considered the arguments presented by both sides and referred to the judgment in 'Union of India vs. Bal Mukund' to emphasize the importance of following standing orders, particularly 1/88, which prohibits mixing contents of different packets before sample collection.

5. The judge noted that the failure to follow the guidelines in 1/88 regarding sample collection after mixing the contents of various packets into one container amounted to serious prejudice to the applicant's case, leading to the conclusion that the rigors of the NDPS Act would not apply.

6. Considering the applicant's custody since the incident date, lack of criminal antecedents, and absence of pending cases, the judge granted bail under specific terms and conditions to ensure compliance and prevent any interference with the investigation or trial.

7. The judgment highlighted that the observations made were solely for the bail application's purpose and would not impact the trial proceedings, thereby concluding the case and disposing of the application accordingly.