2023 (7) TMI 1486 - HC - Indian Laws

Seeking grant of bail - seizure of Ganja, contraband item - non-compliance of the provisions of the Section 50 of the Narcotic Drugs and Psychotropic Substances Act - right of the accused to be searched - HELD THAT - Only one argument that is impressive is about not sending samples taken before Learned Magistrate to the Chemical Analyzer. The argument about not taking samples at the spot but in the office, non- compliance of the provisions of Section 50 (so as to say not having appropriate words in the notice and Mr. Bhoite, Superintendent of Customs acted as Gazetted officer) does not appeal to my conscience. Page no. 13 is the details about the search and seizure. No doubt, it is true that the Court of the JMFC was moved by making an application on 07/05/2021 at page no. 118. It also shows that learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer. Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office. In case of Simarnjit Singh s. State of Punjab 2023 (5) TMI 1389 - SUPREME COURT , the Hon ble Supreme Court has refused to accept analysis done on the basis of the samples taken at the spot and set aside the conviction. Be that it may ultimately the trial will be conducted only on the basis of the evidence collected during investigation. So, this contention can not be accepted - the Applicant has made out the case for bail. The contraband seized is commercial quantity. Bar under Section 37 is lifted. Hence, the Applicant is deserves to release on bail. Bail application allowed.

Summary

Issues:
Non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act during the raid, discrepancies in sample collection and analysis, presence of an independent Gazetted officer during the search, and violation of procedures during seizure and sample collection.

Analysis:
The judgment delivered by S.M. Modak, J. of the Bombay High Court pertains to a bail application filed by the Applicant, who was arrested in connection with an offense under the Narcotic Drugs and Psychotropic Substances Act. The raid conducted at the Applicant's farmhouse resulted in the discovery of Ganja in plastic pouches. The Applicant raised multiple contentions through his Advocate, including the non-compliance of Section 50 of the Act, discrepancies in sample collection, and the absence of an independent Gazetted officer during the search. The Advocate cited relevant judgments to support these arguments, emphasizing the importance of procedural adherence in such cases.

The Respondents, represented by their Advocate, argued that issues regarding non-compliance of Section 50 could be addressed during the trial, citing legal precedents to support their stance. The Judge carefully considered the submissions from both sides and acknowledged the argument regarding the failure to send samples taken before the Learned Magistrate to the Chemical Analyzer. This discrepancy was deemed significant, as it could impact the evidence presented during the trial.

Upon review of the evidence and arguments presented, the Judge found merit in the Applicant's case concerning the sample collection and analysis discrepancies. The Judge noted that while samples were taken at the spot and sent to the Central Forensic Science Library, samples taken before the Learned Magistrate were not forwarded for analysis. This failure to follow proper procedures, as outlined in legal observations, could affect the trial proceedings and the reliability of the evidence.

Ultimately, the Judge granted bail to the Applicant, considering the issues raised regarding sample collection and the commercial quantity of the contraband seized. The bail was allowed with specific conditions, including the furnishing of personal and surety bonds. The Judge emphasized that the observations made were prima facie and that the trial would proceed based on the evidence collected during the investigation. The judgment highlights the importance of procedural compliance and adherence to legal requirements in cases involving narcotics offenses to ensure fair and just trial proceedings.