2023 (6) TMI 1437 - HC - Indian Laws

Seeking grant of Regular bail - involvement in sale, purchase, and possession of the contraband - requirements of fulfilment of section 42 NDPS Act - defect in the sampling procedure adopted by the investigating officer at the time when recovery and seizure - HELD THAT - The Hon ble Supreme Court in Noor Aga v. State of Punjab, 2008 (7) TMI 853 - SUPREME COURT dealing with recovery of 1.4kg heroin from a cardboard container, considering the sanctity of Standing Order 1/89, held ' Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court.' In Basant Rai 2012 (7) TMI 1115 - DELHI HIGH COURT the accused was found carrying a polythene bag containing 8 smaller polythene bags having brown colour substance and the 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. While allowing the appeal of the accused, it was held ' 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. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative.' On the issue of these Standing Order being not mandatory, as contended by the State, reference is sometimes made to Gurbax Singh v. State of Haryana, 2001 (2) TMI 1004 - SUPREME COURT where the Supreme Court observed while acquitting the accused that Section 52 of NDPS Act is directory but held that the provisions cannot be ignored by the Investigating Officer, it was held ' It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article.' From a careful assessment of the decisions cited 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 be a worthless piece of paper. The lack of compliance of these provisions necessarily imports an element of doubt , moreover a reasonable doubt . This, therefore will segway into the issue of proving guilt, considering that the guilt of any accused has to be proved beyond reasonable doubt. It would therefore not be enough to contend, as is done by the prosecution that issues of non-compliance were to be considered at the time of trial and what prejudice is caused to the accused, had to be shown by the accused - 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. This Court is of the opinion that there are reasonable grounds to believe that the petitioner may not be guilty of the offence charged for, and further there is no material on record to show that she was likely to commit any offence while on bail. She has no previous involvements, and lives with her family including 3 minor children in Delhi. The petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount subject to the satisfaction of the Ld. Trial Court, further subject to fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:

1. Validity of the sampling procedure under the NDPS Act.
2. Petitioner's presence at the scene during the raid.
3. Compliance with Standing Orders and their mandatory nature.
4. Consideration of bail under Section 37 of the NDPS Act.

Detailed Analysis:

1. Validity of the Sampling Procedure:

The primary issue revolved around the sampling procedure adopted during the seizure of contraband. The petitioner argued that the procedure was flawed as all 2000 pudiyas were mixed into a single jar before sampling, which contravenes the Standing Order 1/88 and 1/89 issued by the Narcotics Control Bureau. The court examined various precedents, including Ram Bharose v. State and Laxman Thakur v. State, which highlighted that mixing contents from different packages for sampling is not permissible. The court noted that such mixing could lead to a non-representative sample, thus introducing reasonable doubt about the sampling's validity. The court emphasized that the Standing Orders, while sometimes seen as directory, should not be ignored, as they ensure the integrity of the evidence.

2. Petitioner's Presence at the Scene:

The petitioner contended that she was not present at her residence during the raid and was instead at EDM Mall, as evidenced by her CDR records and a PCR call she made. The court noted that the CDR records prima facie suggested that the petitioner was not at her residence when the raid occurred, which could not establish her conscious possession of the contraband. This aspect was crucial in evaluating the petitioner's claim of false implication and played a role in the court's decision to grant bail.

3. Compliance with Standing Orders:

The court deliberated on the mandatory nature of the Standing Orders, which prescribe the procedure for sampling seized narcotics. The court referred to several judgments, including Noor Aga v. State of Punjab and Union of India v. Bal Mukund, which underscored the importance of adhering to these guidelines. The court concluded that non-compliance with these orders could lead to reasonable doubt about the evidence's integrity, thus impacting the prosecution's case. The court stressed that the Standing Orders serve a crucial purpose and should not be treated as optional.

4. Consideration of Bail under Section 37 of the NDPS Act:

The court analyzed the stringent conditions under Section 37 of the NDPS Act for granting bail, which requires the court to be satisfied that the accused is not guilty and will not commit any offense while on bail. Citing the Supreme Court's decision in Mohd Muslim v. State (NCT of Delhi), the court highlighted that the standard for granting bail should involve a prima facie assessment of the material on record. In this case, the court found reasonable grounds to believe that the petitioner might not be guilty, given the procedural lapses in sampling and her alleged absence during the raid. The court also considered the petitioner's lack of previous involvement and her family circumstances.

Conclusion:

The court granted bail to the petitioner, directing her to furnish a personal bond and comply with specific conditions, such as not leaving the country without permission, appearing before the court when required, and reporting to the investigating officer regularly. The court clarified that its observations were solely for the purpose of deciding the bail application and should not influence the trial's merits. The bail application was thus disposed of, with pending applications declared infructuous.