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TMI Blog2023 (6) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ion signifies its applicability with regard to disposal of seized drugs, i.e., at a stage after recovery and seizure. The issue with regard to defect in sampling was for the first time dealt with by the Hon ble Supreme Court, in Gaunter Edwin Kircher v. State of Goa, [ 1993 (3) TMI 370 - SUPREME COURT ] was dealing with a case of conviction under Section 20(b)(ii) of the NDPS Act. The appellant in the said case was found in possession of 2 pieces of charas that weighed 7 and 5 gms respectively. Out of the 2 pieces, one piece of 5 gms was sent for chemical analysis, however, the piece weighing 7 gms was neither sent nor a sample thereof was taken and sent for chemical analysis. In this factual background, the Hon ble Supreme Court held that since there was no chemical analysis for the other piece weighing 7 gms, either wholly or a part of it as a sample, the appellant cannot be convicted for the other cylindrical piece, weighing 7 gms. It was further noted that since the quantity for which test was conducted, was less than 5 gms, the same came within the meaning of small quantity for the purpose of Section 27 of the NDPS Act and in that case, conviction was modified from Section 20( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be answered by the chemical analyst, who analyses the sample and gives his/her opinion. Learned Special Judge during the course of the trial will have the advantage of the testimony of the chemical analyst as well as the production of contraband seized in the Court. It is pertinent to note that the case property is still there for any further analysis if so required. Therefore, it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed. Application dismissed. - HON BLE MR. JUSTICE AMIT SHARMA Petitioner: Mr. Akshay Bhandari, Mr. Anmol Sachdeva, Advocates. Respondent: Mr. AtuI Tripathi, Senior Standing Counsel with Mr. R.K.Shah, Advocate. JUDGMENT AMIT SHARMA, J. 1. The present application under Section 439 of the Criminal Procedure Code, 1973 ( CrPC ) seeks regular bail in Sessions Case No. 867/2021, registered by the Customs Department, under Sections 21/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS ) pending trial before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance tested positive for Heroin . v. In their statements under Section 67 of the NDPS Act, both the accused persons including the applicant admitted to the recovery and agreed with the proceedings as recorded in the panchnama dated 27.06.2021. They admitted to their involvement in illegal trafficking of heroin in commercial quantity. The applicant stated that the contraband that he was carrying was handed over to him by one Mr. John in South Africa and that stated that he had instructions to leave the same in a specified room at Hotel Sarthak Palace, Multani Dhanda, Paharganj, New Delhi and immediately leave the place thereafter. vi. The applicant and co-accused Sydney John-Brain O Grady were arrested on 27.06.2021 and have been in judicial custody since then. vii. The said recovered narcotic substance from both the accused persons found to be Heroin, was seized under the provisions of Section 43 and Section 43(a) the NDPS Act, 1985, read with Section 110 of the Customs Act, 1962 for violation of Section 8, 21,23 29 of the NDPS Act, 1985, as these were found to be liable for confiscation under Section 60 of the NDPS , Act, 1985, read with Section 111, 118 and 119 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent applicant) as alleged in the panchnama for sampling proceedings and the samples were required to be drawn from each of the said 10 packets. However, to the contrary, the Investigating Officer produced the same after mixing the contents of each of those packets and samples have been drawn from the said mixture of contraband and not from each packet, which is contrary to law. 5. The learned counsel for the applicant has only raised the issue of defective sampling for the purpose of the bail application. 6. Learned counsel appearing on behalf of the applicant has placed reliance on Standing order 1/88 1/89 and on a notification dated 23.12.2022 issued by Ministry of Finance (Department of Revenue) in exercise of powers conferred by Section 76 read with Section 52A of the NDPS Act. Learned counsel, relying on the aforesaid rules, has submitted that the prosecution instead of bringing all the packets before the learned Metropolitan Magistrate at the time of moving an application under Section 52A of the NDPS Act for the purpose of sampling produced the mixture of the alleged contraband contained in the ten packets recovered from the applicant. 7. In support of his submission, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held as under: 24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]. (emphasis ) It is pertinent to note that the language of the aforesaid provision signifies its applicability with regard to dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that since there was no chemical analysis for the other piece weighing 7 gms, either wholly or a part of it as a sample, the appellant cannot be convicted for the other cylindrical piece, weighing 7 gms. It was further noted that since the quantity for which test was conducted, was less than 5 gms, the same came within the meaning of small quantity for the purpose of Section 27 of the NDPS Act and in that case, conviction was modified from Section 20(b)(i) to Section 27 of the NDPS Act. 16. The Hon ble Supreme Court, in Union of India v. Bal Mukund Ors., (2009) 12 SCC 161 , while considering an appeal against a judgment of acquittal observed as under: 36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law. xxx 38. Furthermore, we are dealing with a judgment of acquittal. The High Court, for good and suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of similar instructions issued (Standing Order 1/88) by the NCB, New Delhi, held that the same were to be followed by the Officer-in-charge of the investigation of crimes falling within the purview of the NDPS Act. The Court held that even though the said instructions did not have the force of law, they were intended to guide the officers to ensure that a fair procedure is adopted in the investigation. 65. In a subsequent decision, in the case of State of Punjab v. Makhan Chand, (2004) 3 SCC 453, the Supreme Court held that Section 52A(1) of the NDPS Act did not empower the Central Government to lay down the procedure for search of an accused. But, a subsequent decision rendered by the Supreme Court on 31.03.2009, in Union of India v. Bal Mukund (supra), the Supreme Court observed that Standing Instructions No. 1/88, which required samples of adequate quantity be drawn, had not been followed and the same was referred to as a requirement in law . 66. The decision in the case of Bal Mukund (supra) which was rendered by a Bench of three Judges, is binding. It also cannot be disputed that even if the said instructions are not considered as binding, they lay down a procedure which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. 27. For example, if the 8 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, 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. 18. The fact of the present case is that prosecution has mixed all the packets and thereafter, sent to FSL for examination, which is contrary to the procedure prescribed under the law. 19. This Court is informed that the petitioner is a Somalian National Resident and his Refugee Certificate issued by UNHCR (UNITED N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del 1160 r ejected the bail application and observed that alleged prejudice caused to the applicant on account of non-compliance of sampling procedure would have to be established during the course of trial. It was held as under: 23. Similarly, in Basant Rai v. State [Basant Rai v. State, 2012 SCC OnLine Del 3319] , under somewhat similar circumstances accused was found carrying polythene bag containing eight smaller polythene bags having brown colour substance and IO took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis. 24. Further, it may be observed that in Ahmed Hassan Muhammed v. Customs [Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : AIR 1980 SC 52] , the case related to import of certain consignment in which the contraband was recovered and as such apart from the benefit on account of sampling, the contentions had been made that the involvement was alleged on the basis of conspiracy and no incriminating material was recovered from the person of the petitioneraccused therein. 25. Observations of the learned trial court in order dated 6-8-2021 while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion that no grounds for grant of bail are made out in the light of twin conditions laid down in Section 37 of the NDPS Act. 23. Similarly, vide order dated 03.08.2022 passed in BAIL APPLN. 3508/2021 titled Shailender v. State NCT of Delhi, a coordinate bench denied bail to the applicant therein by holding that the procedural lapse has to determined during the course of the trial and not in a proceeding for grant of bail. In Shailender (supra), after discussing various judgments passed by coordinate benches of this Court on the issue of sampling procedure, it was has held as under: 8. It may be observed that the proposition of sending entire quantity seized for chemical analysis may not be practicable in several cases. 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, 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no grounds for bail are made out, at this stage. The application is accordingly dismissed. 24. Another co-ordinate bench of this Court, in Arvind Yadav v. Govt. of NCT of Delhi Through Standing Counsel, 2021 SCC OnLine Del 3619, while dismissing an application for bail, held as under: 13. By this petition, petitioner seeks bail on the ground of noncompliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground. 25. Further, vide order dated 15.03.2023 passed in BAIL APPLN. 3054/2022 titled Sunny v. State (Govt. of NCT of Delhi), a coordinate bench of this Court, while relying upon Arvind Yadav (supra) denied bail to the applicant therein and held as under: 8. Thus, admittedly there was confusion in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, then the same will have an effect on the case of the prosecution and the Courts will have to appreciate the evidence and material placed on record in the case in order to determine the issue. Whether non-compliance of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied , will have to be examined considering the nature of violation of such standing procedure and consequences thereof. 28. It has been pointed out on behalf of the prosecution that the aforesaid standings order are more in the nature of guidelines with respect to drawl of samples and non-compliance thereof, without showing prejudice, cannot be a ground for bail, especially in cases involving commercial quantity. It has also been submitted that prejudice caused, if any, would have to be established at trial during recording of evidence and examining necessary witnesses. 29. In the present case, recovery from the present applicant was from his checked in luggage which on search, was found to be containing 5 boxes of weed biscuits, which further contained 10 transparent plastic packets havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need to be drawn. d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. e) While drawing one sample in duplicate from particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. Further, Standing Order 1/89 dated 13.07.1989 in Paras 2.3, 2.4 2.5 provides as under: 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotics drugs and psychotropic substances save in the case of opium, ganja and charas (hasish were quantity of 21 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the package/ containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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