9911796707
TMI Blog2022 (8) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been submitted on behalf of applicant that he is aged about 70 years of age and that the status report that the State has submitted on record relates to the alleged implication of the applicant in cases i.e., FIR No.904/2014, PS Rajouri Garden, under Sections323/324/341/34 of the Indian Penal Code, 1860, FIR No.327/2018, PS Rajouri Garden, under Sections 323/354/354B/451/506/34 of the Indian Penal Code, 1860 and FIR No.739/2018, PS Rajouri Garden, under Sections380/411/34 of the Indian Penal Code, 1860 and not in relation to the offences punishable under the NDPS Act, 1985 as alleged in relation to FIRNo.552/2021, PS Rajouri Garden, in which the application has now been filed. It is also submitted on behalf of the applicant that the applicant is on bail in those other three cases. Inter alia, it has been submitted on behalf of the applicant that the samples that have been drawn in the instant case have not been drawn in accordance with law and reliance is placed on a catena of verdicts on behalf of the applicant i.e., 1. A verdict of this Court in Bail Appln. 3076/2022 titled Ahmed Hassan Muhammed vs. The Customs dated 11.02.2021; 2. A verdict of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, the learned APP for the State refutes the said submission and submits that the representative samples have been drawn in accordance with law and rather before the learned Magistrate as recorded vide proceedings dated 03.07.2021 in the instant case. It is further submitted as has already been adverted to hereinabove on behalf of the State that apart from the instant FIR in which the application has been filed, there are three other cases against the applicant. The averments in the FIR itself indicate the applicant to be of 70 years of age. As per the averments made in the FIR from the possession of the applicant a white polythene packet, and two boxes of Junior pre-rolled cone, 5 boxes of cannabis tubes, 2 boxes of No.1 King Perfect Roll, three boxes of Bongchie Perfect Roll and six boxes of Bongchie Rolling Paper were recovered and on checking the polythene it was found to contain several small small plastic placket pudias which were filled and on opening and checking the same they were found to contain leafy, seeded and stinky grass type of product which as per the smell and characteristics seem to beganja and all the small small polythene packets were opened and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... samples to be drawn in each seizure case- (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container . (b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container maybe carefully bunched in lots of 10packages/containers may be bunched in lots of 40such packages such packages/containers. For each such lot of packages/containers, one sample induplicate may be drawn. (c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5packages/containers remain, no bunching would be necessary and no samples need 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 remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5packages/containers remain, no bunching will be necessary and no sample need to be drawn. 2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package/container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot . 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S.No. of the package(s)/ conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packets containing suspicious powdery substance were found concealed in a stroller bag‟. On testing with the field testing kit‟, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture. XXXXX XXXXXX XXXXXX 33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019SCC On Line Ker 2685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P H 1754 and Santosh Kumarv. The State of Bihar passed in Criminal Appeal (SJ)No.158/2016 decided on 30.08.2019 , In the facts and circumstances of the instant case, the applicant is allowed to be released on bail on filing a bail bond in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
