2024 (1) TMI 1338 - HC - Indian Laws

Seeking grant of regular bail - commercial quantity of contraband - improper sampling procedure - HELD THAT - The prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn before the learned Metropolitan Magistrate. Similar exercise was done for the packages recovered from the backpacks carried by the accused. This is clearly is not in compliance with the Standing Orders. In Shaliender 2022 (8) TMI 1545 - DELHI HIGH COURT , this Court observed that the circumstances under which the sampling procedure could not be followed as per the mandate, needs to be duly considered after evidence has been led on record and the FSL Expert is examined. This Court held that at this stage, there is no reasonable ground to give a finding that the entire proceedings stand vitiated because of alleged sampling procedure adopted by the Investigating Agency. The Court also found the reason given by the learned Trial Court for rejecting the bail to the accused therein, which was that the quantity found even in one package was intermediatory in nature, to be relevant to refuse the bail. The said judgment may not be applicable in the facts of the present case inasmuch as the prosecution has made no endeavour to explain why the procedure set out in the Standing Orders was not followed. In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. There is also no prior history of any prosecution being pending against the accused persons herein. The accused have already been in custody for more than a year. Both the accused are aged around 20 years and the trial is likely to take long. The applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail - it is directed that the applicants be released on bail subject to fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:

1. Legality of the sampling procedure followed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Compliance with Standing Orders No.1/88 and No.1/89.
3. Applicability of Section 37 of the NDPS Act concerning bail conditions.
4. Consideration of non-compliance with procedural requirements as grounds for bail.

Detailed Analysis:

1. Legality of the Sampling Procedure:

The judgment addresses the legality of the sampling procedure followed by the prosecution under the NDPS Act. The accused were found with a significant quantity of what appeared to be Ganja/Marijuana. The prosecution's method involved mixing all the seized substances into a composite whole before drawing samples, which was challenged by the defense as non-compliant with the established procedure.

2. Compliance with Standing Orders No.1/88 and No.1/89:

The defense argued that the sampling procedure violated Standing Orders No.1/88 and No.1/89, which provide detailed guidelines on how samples should be drawn from seized narcotic substances. These orders require that samples be drawn from each package/container individually unless they are identical in all respects, in which case they can be bunched and sampled as a lot. The court found that the prosecution's method of mixing all packages into one composite whole was not in compliance with these Standing Orders.

3. Applicability of Section 37 of the NDPS Act:

Section 37 of the NDPS Act imposes stringent conditions for granting bail in cases involving commercial quantities of narcotic substances. The court noted that for bail to be granted, there must be reasonable grounds to believe that the accused is not guilty and is unlikely to commit an offense if released. The prosecution argued that the accused should not be granted bail due to the commercial quantity involved. However, the court found that the non-compliance with the sampling procedure provided reasonable grounds to believe that the accused might not be guilty, thus meeting the conditions for bail under Section 37.

4. Consideration of Non-compliance with Procedural Requirements as Grounds for Bail:

The court considered previous judgments where non-compliance with procedural requirements had led to the granting of bail. It referenced cases such as Laxman Thakur v. State and Amina v. State NCT of Delhi, where similar procedural lapses had resulted in bail being granted. The court emphasized that non-compliance with the prescribed sampling procedure could introduce reasonable doubt regarding the prosecution's case.

Conclusion:

The court concluded that the prosecution's failure to adhere to the prescribed sampling procedure under the Standing Orders provided reasonable grounds to believe that the accused might not be guilty. Given the accused's young age, lack of prior criminal history, and the time already spent in custody, the court granted bail. The bail was subject to conditions including not leaving the country, appearing before the trial court, and not engaging in criminal activities. The court's decision was based on the principle that when a procedure is prescribed by law, it must be followed precisely, and any deviation could affect the validity of the prosecution's case.