2021 (7) TMI 1207 - HC - Indian Laws

Smuggling - phensedyl codeine cough syrup 100 ml bottle - main argument raised by the Ld. counsel for the petitioner is that there is infirmity in drawing of the samples and the proper procedure has not been followed by the NCB (respondent) at the stage of drawing the samples - HELD THAT - In the instant case, as per the prosecution 200 bottles of phensedyl codeine cough syrup were recovered. The seized bottles were of the same size and were having batch numbers on them i.e. batch No. PHB7217 PHB7236. Therefore, in these circumstances, since these were cough syrup bottles which are ordinarily available in the market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under the same formulation as per their batch numbers. Therefore, there is no infirmity in the manner in which the sample has been drawn. As far as the non compliance of mandatory provisions of Section 50 of the NDPS Act is concerned, the same is a matter of trial. The application lacks merits and the same is, therefore dismissed.

Summary

Issues:
Bail application under Section 439 Cr.P.C. - Proper procedure in drawing samples - Violation of sampling procedure - Recovery of contraband - Compliance with Section 50 of NDPS Act.

Analysis:
The petitioner filed a bail application under Section 439 Cr.P.C. seeking bail in a case under the NDPS Act. The case involved the apprehension of two individuals at the IGI Airport with narcotic drugs. The petitioner argued that the National Control Bureau (NCB) did not follow the proper procedure in drawing samples from the recovered bottles, which could lead to the acquittal of the accused. The petitioner cited legal precedents to support this argument. On the other hand, the NCB contended that the recovery constituted a commercial quantity of contraband and emphasized the lack of infirmity in drawing samples, as all bottles were of the same size and had the same label. The NCB also highlighted that charges had been framed and not challenged, and the recovery was from the petitioner's baggage, not his person, exempting the application of Section 50 of the NDPS Act. The NCB argued that the petitioner's contentions were trial matters.

The main argument centered on the infirmity in drawing samples and the alleged failure to follow the correct procedure by the NCB. Despite the attractive nature of the petitioner's argument regarding sample drawing, the court found it unconvincing due to the circumstances of the case and the recovery from the petitioner. The prosecution stated that 200 bottles of cough syrup were recovered, all of the same size with batch numbers. The court reasoned that since these bottles are commonly available for treating cold and cough and prepared under the same formulation as indicated by batch numbers, there was no issue with sample drawing. The court also noted that any non-compliance with Section 50 of the NDPS Act would be addressed during the trial. Consequently, the bail application lacked merit and was dismissed. The court clarified that its decision did not express any opinion on the case's merits.