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TMI Blog2023 (3) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... azette notification dated 23.12.2022, thus the compliance of Standing Order 01/1989 prior to the notification perse would not be a ground to grant bail. Hence purely on this ground, bail not granted to the petitioner - petition dismissed. - Mr. Justice Yogesh Khanna For the Appellant : Mr.Aditya Aggarwal and Mr.Naveen Panwar, Advocates For the Respondent : Mr.Mukesh Kumar, APP for State with Insp. Ishwar Singh, I/C AATS ORDER 1. Heard arguments. 2. The only issue raised by the learned counsel for the petitioner is qua non compliance of Section 52A of NDPS Act. Section 52A NDPS Act runs as under: ―52A. Disposal of seized narcotic drugs and psychotropic substances. (1) xxxxxxxx (2) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 3. The learned counsel for the petitioner referred to various judgments viz. Ahsan Ahmad vs. State of Uttar Pradesh in Misc. Bail Appl.38721/2022 decided on 19.12.2022 by the Allahabad High Court; Ranjit Sarkar vs. Sandip Das and Another 2012 SCC OnLine Gau 868; Om Prakash vs. State in CRL.A. 453/2014 decided on 23.05.2014; Thounaojam Punima Singh vs. Union of India and Ors . in CRL.A. 66/2020 decided on 20.01.2021 by the High Court of Gauhati and Tej Bahadur Singh Anr. vs. Narcotic Control Bureau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 13.06.1989 by the Government of India, Ministry of Finance, Department of Revenue and it was under this standing order the Investigating Officers were investigating and drawing samples. The discrepancy between the Standing Order 01/1989 and Section 52A of the Act was noticed in Union of India vs. Mohanlal and Anr . in CRL.A.652/2012 decided on 28.01.2016 wherein the Court held as follows: ― 13. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6. (3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer. 8. Thus, admittedly there was confusion in the procedure of drawing samples and per Arvind Yadav (supra) even if samples were drawn at the spot would not vitiate the trial, hence any violation thereof could never be the sole basis for grant of bail. Such discrepancy in rules was even noted by the Hon ble Supreme Court in Mohan lal (supra) and accordingly fresh Rules were notified vide gazette notification da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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