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TMI Blog2023 (6) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... ras from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis. While allowing the appeal of the accused, it was held ' 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.' On the issue of these Standing Order being not mandatory, as contended by the State, reference is sometimes made to Gurbax Singh v. State of Haryana, [ 2001 (2) TMI 1004 - SUPREME COURT] where the Supreme Court observed while acquitting the accused that Section 52 of NDPS Act is directory but held that the provisions cannot be ignored by the Investigating Officer, it was held ' It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involvements. Factual background 2. As per the case of the prosecution on the basis of secret information received on 26th September 2022 at about 4:00 p.m. alleging the involvement of one Salauddin, his wife Amina (the petitioner herein) and his brother Masoom Sheikh, all residents of H No.87B, First Floor, DDA Flats, Shastri Park, Delhi being involved in sale, purchase, and possession of the contraband. 3. SI Balbir Chand after satisfying the credibility of the information apprised the ACP and pursuant to further directions, permission was given to enter, search, and seize the contraband and to arrest the accused without a warrant. Requirements of section 42 NDPS Act were fulfilled and information was lodged by SI Balbir Chand vide DD No.5 in the daily diary. Thereafter, a team led by the SI Balbir Chand was constituted for the raid which included the beat staff and women constables. The raid was accordingly conducted at the aforementioned premises. 4. The petitioner along with her brother-in-law Masoom Sheikh were allegedly found inside the house. They were both served notices for the search of their house which was duly acknowledged by them. According to the raiding team, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her noted that during the course of investigation, the petitioner had moved an application before this Court with the prayer for issuing directions to preserve the footage of cameras installed in McDonald's, EDM Mall, Koshambi Road, Anand Vihar for 26th September, 2022 for the period 6 to 7:30 p.m. and to preserve the CDR of mobile no.9871186657 from which she had made a call at 112 regarding the illegal entry of police in her house. Pursuant to the inquiry in the matter, CDR of the said mobile number has been preserved and the nodal officer has been cited as a witness in the list. The DVR of the CCTV installed at EDM Mall, Ghaziabad was taken into possession and has been sent to FSL, Rohini to know the genuineness of the claim and the result of the same has been obtained. 9. As per the status report, the investigation of the case qua the petitioner and co-accused Masoom Sheikh has been completed and the charge-sheet has been prepared which was later filed before this Court. 10. On 17th February 2023 report from FSL was received and the exhibit was found to contain diacetyl-morphine, aceta-minophen, acetylcodenine, monoacetyl-morphine and tri-methoprim . Submissions on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein. c) This Court in Shakuntla v. State, Bail Appl. 286/2023 vide order dated 24th February, 2023 was dealing with the recovery of 10 packets which were opened and contents were transferred in one big bag and samples were taken thereafter. The issue of SO 1/88 was again adverted to. The Court relying upon the decision in Laxman Thakur (supra) held that the collection of samples was faulty and granted bail to the accused therein. d) In Basant Rai v. State (supra) 8 packets recovered were mixed together and samples were drawn. This Court held that though it was settled law that it was not practicable to send the entire quantity, then sufficient quantity by way of samples from each packet recovered to be sent for chemical examination. In that matter it was held that mixing the substances of all 8 packets into one or two and drawing a sample, would be of the total quantity and not of separate pieces, benefit therefore should have gone to the accused since proper procedure had to be followed. 12. Relying inter alia upon the aforementioned decisions, the learned counsel for the petitioner stated that mixing together all the pudiyas would make the whole procedure invalid. Further, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant since there was no recovery from the person. Further, the SOs are merely guidelines and are not mandatory and these issues are the ones that can be considered at the trial. Reliance was placed on the decision of the Hon ble Supreme Court in Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 where it was held that samples taken by mixing the two bags has not caused any prejudice to the accused. The learned counsel for the petitioner however distinguished the said judgment on the basis that the final decision was on the basis of collective weight and not of the mere sampling being invalid due to mixing. 15. Further, it was submitted by the Ld. APP that at best mixing 20 packets together was an irregularity and did not invalidate the whole process. Reliance was placed on the decision of the Hon ble Supreme Court in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 where it was held that whether the procedure laid down under the NDPS Act is complied with or not, cannot be looked at the time of grant of bail but can be decided only at the time of trial. Analysis 16. As regards the issue of sampling at the time of seizure, it may be worthwhile to deliberate upon the various autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packages /containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall 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. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it 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 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn. 2.7 If such re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 5 packages/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. (emphasis added) 18. The Hon ble Supreme Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417 dealing with recovery of 1.4kg heroin from a cardboard container, considering the sanctity of Standing Order 1/89, held as under: 87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith. 90. Recently, this Court in State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1 held that statutory instructions are mandatory in nature. 91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. (emphasis added) 19. The Hon'ble Supreme Court in Union of India v. Bal Mukund (supra) while referring to Standing Order 1/88 held as follows: 36. There is another as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed and it held as under: 63. Concededly, in the present case the instructions contained in Standing Order No. 1/89, was not followed. 64. In Khet Singh v. Union of India: (2002) 4 SCC 380, the Supreme Court had, in the context 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No.158/2016 decided on 30.08.2019. (emphasis added) 23. More recently, a Coordinate Bench of this Court in Laxman Thakur (supra) held as under: 11. The Standing Order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. 12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable. (emphasis added) 24. On the issue of these Standing Order being not mandatory, as contended by the State, reference is sometimes made to Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 where the Supreme Court observed while acquitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading seizure and sampling . The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order (emphasis added) 26. Reference must also be made to the decision of the Hon ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 where it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out in order to ascertain the nature of the substance and its quantity. In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders. 28. As a side-wind, it is worth mentioning that post the decision in Mohanlal (supra), the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, 2023 SCC OnLine Del 2881 while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein procedure for seizure and storage of seized material and sampling and disposal has been provided in detail and which directs sampling to be done in front of the magistrate. Therefore, as per this view, the sampling ought to be done in compliance of Section 52A and not at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing all the pudiyas together, the sample was not a true representative sample and the composition of the mix would therefore, would be at a serious variance. Even though these are issues which would have to be considered at the point of trial, it would still import an element of reasonable doubt in the sampling procedure undertaken. 33. Further, the CDR records prima facie seem to suggest that the petitioner was not present at her residence when the raid was conducted at 7:20 p.m. and despite being a point to be confirmed during trial, benefit at this stage of bail, would also have to go towards the accused. 34. This Court has taken guidance from the decision of the Hon ble Supreme Court in Mohd Muslim v. State (NCT of Delhi) (2023) SCC OnLine SC 352 where it has been held by the Apex Court that at the stage of granting bail in the NDPS matter, the standard to be considered is to look at the material in a broad manner and reasonably see whether the guilt of the accused guilt may be proved. The satisfaction of the Court in this regard is only prima facie in nature based on reasonable reading and does not call for a meticulous examination of the materials collected during the investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Part III of the Constitution of India. Conclusion 36. In light of the above, on a prima facie assessment of the facts and circumstances, this Court is of the opinion that there are reasonable grounds to believe that the petitioner may not be guilty of the offence charged for, and further there is no material on record to show that she was likely to commit any offence while on bail. She has no previous involvements, and lives with her family including 3 minor children in Delhi. 37. Consequently, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount subject to the satisfaction of the Ld. Trial Court, further subject to the following conditions: i. Petitioner will not leave the country without prior permission of the Court. ii. Petitioner shall provide permanent address to the Ld. Trial Court. The petitioner shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Petitioner shall appear before the Court as and when the matter is taken up for hearing. iv. Petitioner shall join investigation as and when called by the IO concerned. v. Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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