2022 (8) TMI 1545 - HC - Indian Laws

Seeking grant of bail - recovery of heroin, contraband item - reasonable grounds to believe - legitimacy of the sampling procedure adopted by the prosecution - Section 37 of the NDPS Act - HELD THAT - The drug peddlers and suppliers appear to be adopting the unique and novel methodology to escape law, by carrying large number of smaller packets which later on, is challenged on the ground of improper sampling during investigation. In Gaunter Edwin Kircher vs. State of Goa 1993 (3) TMI 370 - SUPREME COURT , it was prima facie established by the accused that the recovered substance consisted two separate forms but only a part of the same which was a flat substance and not in the form of cigars was forwarded. As such, benefit was extended at the stage of appeal since no finding could be given that other part of the alleged recovered substance, which was not forwarded for examination could be presumed to be a narcotic substance. However, the factual position in the present case is distinct. Though the burden always remains on the prosecution to prove that the quantity possessed by accused was heroin, beyond reasonable doubt but it cannot be ignored that the petitioner is yet to come up with any explanation during trial as to what was allegedly contained in the similarly packed smaller packets which on preliminary testing by the Investigating Agency tested positive for heroin. Prima facie the substance recovered in different packets was of similar texture, colour and tested positive on field testing. Considering the limitations for grant of bail referred in Section 37(1)(b)(ii) for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity, there must exist reasonable grounds to believe at this stage that the person is not guilty of such an offence. In the considered opinion, there does not exist reasonable grounds at this stage to give a finding that the entire proceedings stand vitiated because of the alleged sampling procedure adopted by the Investigating Agency. The procedural deficiency in sampling, as contended by learned counsel for the petitioner, can be considered only after the evidence is led on record. Thus, no grounds for bail are made out, at this stage - application dismissed.

Issues Involved:

1. False implication and alleged illegal detention of the petitioner.
2. Legitimacy of the sampling procedure adopted by the prosecution.
3. Applicability of precedents and judgments cited by both parties.
4. Consideration of bail under Section 37 of the NDPS Act.

Detailed Analysis:

1. False Implication and Alleged Illegal Detention:

The petitioner claimed false implication, asserting that he was apprehended earlier than the alleged time of recovery. The defense relied on Call Detail Records to support this claim. However, the court noted that such defenses need to be established during the trial. The prosecution's narrative, supported by relevant DD entries, indicated that the Investigating Officer (IO) was engaged in another investigation and the petitioner's claim of being lifted prior to the raid was opposed. The court emphasized that the defense's claim could not be substantiated at this stage, and the prosecution's explanation was deemed credible.

2. Legitimacy of the Sampling Procedure:

The petitioner challenged the sampling procedure, arguing that the contents of 24 packets were mixed before sampling, which was against the mandate of previous judgments like Basant Rai vs. State. The court examined various precedents, including Gaunter Edwin Kircher vs. State of Goa and Javed A. Bhat vs. UOI, which dealt with similar issues of sampling and analysis. The court distinguished these cases based on their facts, noting that the sampling procedure's alleged deficiencies could only be appropriately addressed during the trial. The court found that the procedural defects claimed by the petitioner were not sufficient to vitiate the proceedings at this stage.

3. Applicability of Precedents and Judgments Cited:

The petitioner and the prosecution cited several judgments to support their respective positions. The court critically analyzed these precedents, noting that many of the cases cited by the petitioner were distinguishable based on their facts or were decided at the appeal stage after a full trial. The court also considered judgments like Anthony Umeh vs. State and Bipin Bihari Lenka vs. Narcotic Control Bureau, which supported the prosecution's stance that procedural defects in sampling do not necessarily vitiate the proceedings, especially at the bail stage.

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

The court reiterated the stringent conditions for granting bail under Section 37 of the NDPS Act, particularly for offenses involving commercial quantities of narcotics. The court emphasized that there must be "reasonable grounds to believe" that the accused is not guilty of the offense. Given the circumstances and the evidence presented, the court concluded that such reasonable grounds did not exist at this stage. The procedural issues raised by the petitioner were deemed matters for trial, and the court found no grounds to grant bail.

In conclusion, the court dismissed the bail application, emphasizing that the issues raised by the petitioner, particularly regarding the sampling procedure, would be more appropriately addressed during the trial. The court's decision was guided by the need to adhere to the statutory constraints of Section 37 of the NDPS Act and the lack of reasonable grounds to believe the petitioner was not guilty at this juncture.

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