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2021 (2) TMI 830 - HC - CustomsSmuggling - prosecution has mixed all the packets and thereafter sent to FSL for examination - offences under Sections 8/22/23/29 of Narcotic Drugs and Psychotropic Substances Act 1985 - HELD THAT - In Basant Rai 2012 (7) TMI 1115 - DELHI HIGH COURT while dealing with a case where accused was found carrying a polythene bag containing 8 similar polythene bags having brown colour substance and Investigating Officer took small pieces of charas from each packet mixed the same and drew two sample parcels which were sent to FSL for analysis and it was held that if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour when we mix the substances of all 8 packets into one or two; then definitely the result would be of the total quantity and not of the two pieces. Therefore the process adopted by the prosecution creates suspicion. In such a situation as per settled law the benefit thereof should go in favour of the accused. The fact of the present case is that prosecution has mixed all the packets and thereafter sent to FSL for examination which is contrary to the procedure prescribed under the law - This Court is informed that the petitioner is a Somalian National resident and his Refugee Certificate issued by UNHCR (United nation High Commissioner for refugees) was valid till 20/12/2019. Hence he has a valid document to stay in India at the time of his arrest. He is in judicial custody since 04.02.2019. No doubt the recovered substance in the present case is of commercial quantity however the procedure prescribed is contrary to the dictum of this Court. This court is informed by learned counsel for the petitioner that petitioner is not a habitual offender and is not likely to get involved in any other case during bail. Thus petitioner has qualified twin conditions of Section 37 of NDPS Act. The petitioner deserves bail - petitioner is directed to be released on bail forthwith on his furnishing personal bond in the sum of 25, 000/- with one surety in the like amount to the satisfaction of the Trial Court - petition allowed.
Issues Involved:
1. Allegations and evidence against the petitioner. 2. Procedure for drawing representative samples. 3. Petitioner's involvement and bail eligibility under Section 37 of the NDPS Act. Issue-wise Detailed Analysis: 1. Allegations and Evidence Against the Petitioner: The petitioner is accused in Complaint No. VIII/SIIB/CUS/ACC Import/Angel/19/2019, registered for offences under Sections 8/22/23/29 of the NDPS Act. He was arrested on 05.02.2019 and has been in judicial custody since then. The allegations are based on secret information received on 30.01.2019 about the import of contraband goods from Addis Ababa by Ethiopian Airlines. The consignment, declared as green tea, was found to contain khat leaves (a psychotropic substance listed in the NDPS Act). The consignment was surveilled and intercepted by customs officials, leading to the discovery of 581.455 Kgs of suspected Dry Chat leaves, which were seized under the provisions of the NDPS Act. 2. Procedure for Drawing Representative Samples: The procedure for drawing representative samples was contested by the petitioner’s counsel. It was argued that the sanctity of the case property was compromised because the samples were mixed before drawing representative samples. The counsel relied on previous judgments, such as Amani Fidel Chris Vs. NCB and Basant Rai Vs. State, where it was observed that mixing substances before drawing samples vitiates the entire sample. The prosecution's method of mixing all the packets and then sending them to FSL for examination was found to be contrary to the procedure prescribed under the law. 3. Petitioner's Involvement and Bail Eligibility Under Section 37 of the NDPS Act: The petitioner’s counsel argued that there was no incriminating material recovered from the petitioner and that he was falsely implicated. It was also highlighted that the trial was likely to take a long time, and the evidence was insufficient to connect the petitioner with the offence. The counsel for the respondent argued that the petitioner conspired with a co-accused and that the recovery was of commercial quantity, thus opposing bail under Section 37 of the NDPS Act. However, the court noted that the petitioner, a Somalian national with a valid Refugee Certificate, had been in judicial custody since 04.02.2019 and was not a habitual offender. Given the procedural lapses in sample collection and the prolonged trial, the court concluded that the petitioner deserved bail. Conclusion: The court directed the petitioner to be released on bail, furnishing a personal bond of ?25,000/- with one surety in the like amount. The petitioner was instructed not to influence witnesses or tamper with evidence. The trial court was advised not to be influenced by the observations made in this order. The petition was disposed of accordingly, and the judgment was ordered to be uploaded on the court's website.
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