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TMI Blog2024 (4) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court also observed that the provisions are directory in nature, therefore, the Court is bound to examine the prejudice which shall be caused to the petitioner and consequent failure of justice due noncompliance. The process of sampling has to be in accordance with Section 52A of the NDPS Act. Any deviation so made in the sampling procedure, shall not ipso facto lead to grant of bail to the accused. At the same time the officers of the respondent cannot completely violate or ignore the provisions of the Act, the Rules framed thereunder or the standing orders. However, any defect alleged to have occurred in the sampling procedure should be egregious and should prima facie cause an irreparable prejudice to the accused. As far as the present case is concerned, it is to be noted that it is not the case of the petitioner that the samples which have been drawn, were drawn from any other pulandas. In fact, there is no dispute that the samples which have been drawn have been taken from the same pulandas which were recovered from the truck. The mere fact that the proceedings under Section 52A of the Act are silent in respect of the number of brown bundles which were ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /607/21 dated 21.06.2021. 6. Investigation qua the owner of the truck was then taken up, whose registered owner was revealed to be Sriniwas R/o Village Ratori, who stated that he had sold the truck to one Pushpender Gupta for Rs. 6 lacs and provided an affidavit in this regard. Thereafter, Pushpender Gupta was also interrogated and he accepted that he had bought the truck and had handed it over to the petitioner for transportation from Delhi to Odisha but did not reveal anything about the recovered contraband. 7. It is stated in the status report that the petitioner disclosed in his disclosure statement that he was directed by Prince to meet Sushant @ Badakulu Ladu in Odisha and accordingly, the petitioner met him in Odisha and he handed over 05 packets of ganja to the petitioner to be transported, with which the petitioner was apprehended in Delhi. 8. The learned counsel appearing on behalf of the petitioner at the outset submits that the petitioner is a young man who has been falsely implicated in the present case. He submits that recovery from the petitioner in the present case is doubtful as no independent witness was joined at the time of recovery. He submits that the stand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act itself records that there is no defect in sampling. Further, the samples were drawn in the presence of the petitioner and his counsel, photography of the inventory has been done and two samples were drawn from each of the five pulandas and the petitioner never raised any objection at the time of drawing samples under Section 52A of the Act and cannot raise any objection at this stage. 14. He submits that the arguments raised on behalf of the petitioner in respect of the alleged defect in sampling under Section 52A of the Act is not tenable. He relies upon the judgment of this Court in Quentin Decon v. Customs [2023 SCC OnLine Del 3329] to contend that any defect in the procedure adopted for sampling of the contraband can enure to the benefit of the petitioner only at the time of the trial and not at the time of considering his bail application. 15. I have heard the learned counsel for the petitioner as well as the Additional Standing Counsel for the State and perused the record. 16. The gravamen of allegations against the petitioner is that he was driving a truck which was found to contain 116.50 Kgs of cannabis (ganja) and was arrested in connection with the recovery of sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presence of such Magistrate, photographs of such drugs, substances or conveyances 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, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 18. The Hon ble Supreme Court in the case of State of Punjab v. Balbir Singh [(1994) 3 SCC 299] in the context of an argument as to the defect in the sampling procedure so adopted observed that Sections 52 and 57 of the Act contain procedural compliances which are to be adhered to but if there is no strict compliance of the above noted pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that any prejudice which allegedly has been caused to the accused as a consequence of any defect in the sampling procedure so adopted can be appreciated after the examination of the witnesses. The relevant paragraph of which reads as under: 26. The procedure followed in the present case appears to be distinguishable as referred in the typed copy of the complaint annexed with the application. In the present case, total 58 big packets were divided in 11 lots and 48 small packets were divided in 2 lots. Two samples of 25 g each were drawn from each lot (after taking small substance from each packet). Thus, total 26 samples were drawn. I am of the view that at this stage, it may be premature to hold that the procedure adopted for sampling vitiates the entire proceedings since the sampling was done after each of the packets tested positive for ganja. The prejudice, if any, on account of alleged improper sampling as contended by counsel for the petitioner, can only be appropriately considered after the examination of the witnesses during the course of trial. (Emphasis supplied). 20. Similarly, this Court in Surender Kumar v. Central Bureau of Narcotics [2023 SCC OnLine Del 6839.] afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, 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. 21. The principle which emerges from the above judgments is that the process of sampling has to be in accordance with Section 52A of the NDPS Act. Any deviation so made in the sampling procedure, shall not ipso facto lead to grant of bail to the accused. At the same time the officers of the respondent cannot completely violate or ignore the provisions of the Act, the Rules framed thereunder or the standing orders. However, any defect alleged to have occurred in the sampling procedure should be egregious and should prima facie cause an irreparable prejudice to the accused. 22. As far as the present case is concerned, it is to be noted that it is not the case of the petitioner that the samples which have been drawn, were drawn from any other pulandas. In fact, there is no dispute that the samples which have been drawn have been taken from the same pulandas which were recovered from the truck. The mere fact that the proceedings under Section 52A of the Act are silent in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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