2022 (4) TMI 1639 - HC - Indian Laws

Seeking grant of bail - recovery of contraband - Opium - discrepancy in the weight of the samples sent for forensic analysis - HELD THAT - The recovered contraband is heavy in quantity. There is compliance of the mandatory provision of N.D.P.S. Act. The presence of applicants far away from their usual place of residence further casts shadow on his defence. The sample has been taken before the concerned Magistrate, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the N.C.B. The Standing Order No. 1/88 has been complied with. The call details further corroborate the prosecution story. Minor discrepancy in the weight of the sample sent at the Forensic Laboratory cannot shake the roots of the prosecution case. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicants on bail - bail application rejected.

Summary

Issues Involved:
1. Discrepancy in the weight of the samples sent for forensic analysis.
2. Compliance with the Standing Order 1/89 regarding sample weight.
3. Applicability of previous judgments on sample weight discrepancies.
4. Compliance with mandatory provisions of the NDPS Act.
5. Justification for denying bail based on the quantity of contraband and other factors.

Detailed Analysis:

1. Discrepancy in the weight of the samples sent for forensic analysis:

The applicants' counsel highlighted discrepancies in the weight of the samples sent for forensic analysis, noting that two samples weighed less than the required 24 grams, specifically 22.2 grams and 21.6 grams. The counsel argued that this discrepancy undermines the credibility of the prosecution's case, referencing the Supreme Court's judgment in *Rajesh Jagdamba Avasthi vs. State of Goa*, where significant weight differences were found to erode the credibility of the recovery proceedings. The court, however, noted that minor discrepancies in sample weight do not necessarily invalidate the prosecution's case, especially since the overall quantity of recovered contraband was substantial.

2. Compliance with the Standing Order 1/89 regarding sample weight:

The applicants' counsel argued that the Standing Order 1/89 mandates that the sample for chemical analysis should not be less than 24 grams in the case of opium. The counsel cited previous judgments, such as *Jai Pal and Another vs. State of U.P.*, which emphasized the necessity of adhering to these guidelines. The court acknowledged the importance of compliance with standing orders but noted that the minor discrepancy in sample weight was not sufficient to grant bail, given the overall circumstances and the quantity of the contraband involved.

3. Applicability of previous judgments on sample weight discrepancies:

The applicants' counsel relied on various judgments to support their argument for bail, including *Om Prakash Verma vs. State of U.P.*, which stressed the legal obligation to comply with guidelines issued by authorities. The court, however, distinguished these cases by emphasizing that the present adjudication was for bail purposes only and not for conviction or acquittal. The court found that the previous judgments cited were not directly applicable to the current bail consideration, given the context and the stage of the proceedings.

4. Compliance with mandatory provisions of the NDPS Act:

The prosecution argued that all mandatory provisions of the NDPS Act, including Sections 50 and 57, were followed meticulously. The recovery was conducted in the presence of independent witnesses and a Gazetted Officer, and the samples were taken before a Magistrate, ensuring no adulteration. The court found that there was substantial compliance with the NDPS Act's provisions, which bolstered the credibility of the prosecution's case.

5. Justification for denying bail based on the quantity of contraband and other factors:

The court considered the significant quantity of contraband recovered (7 kg of opium) and the applicants' lack of criminal history. The court noted that the applicants were found far from their usual place of residence, which cast doubt on their defense. The presence of call details further corroborated the prosecution's narrative. Given these factors, the court concluded that the severity of the offense and the evidence on record justified the denial of bail at this stage. The court emphasized that the observations made were limited to the bail application and would not affect the trial's merits.

Conclusion:

The court rejected both bail applications, citing the substantial quantity of contraband recovered, compliance with legal provisions, and the lack of evidence suggesting false implication. The court directed the lower court to expedite the trial, ensuring a resolution within one year, while clarifying that the current observations would not influence the trial's outcome.