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TMI Blog2022 (8) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the burden always remains on the prosecution to prove that the quantity possessed by accused was heroin, beyond reasonable doubt but it cannot be ignored that the petitioner is yet to come up with any explanation during trial as to what was allegedly contained in the similarly packed smaller packets which on preliminary testing by the Investigating Agency tested positive for heroin. Prima facie the substance recovered in different packets was of similar texture, colour and tested positive on field testing. Considering the limitations for grant of bail referred in Section 37(1)(b)(ii) for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity, there must exist reasonable grounds to believe at this stage that the person is not guilty of such an offence. In the considered opinion, there does not exist reasonable grounds at this stage to give a finding that the entire proceedings stand vitiated because of the alleged sampling procedure adopted by the Investigating Agency. The procedural deficiency in sampling, as contended by learned counsel for the petitioner, can be considered only after the evidence is led on record. Thus, no grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so urged that upon inquiry by the senior officers, investigation of the case was transferred from District Narcotic Cell to PS: Hauz Qazi. The sampling procedure adopted by the prosecuting agency is further stated to have vitiated the entire proceedings. It is further contended that the contents of 24 packets allegedly recovered were put into one packet and thereupon the samples were drawn against the mandate of observations of the Hon ble High Court of Delhi in Basant Rai vs. State, 2012 (3) JCC 138 (Narcotics), Crl. Appeal No.909 of 2005 passed on 02.07.2012 . It is also urged that at the best, only a case for recovery of 200 grams could be made out in view of improper sampling procedure, which does not fall within the commercial quantity . Reliance is further placed upon the judgments passed in Gaunter Edwin Kircher vs. State of Goa, Scretariat, Panji, Goa, 1993(2) SCR 337; Javed A. Bhat vs. UOI, 2007 Crl.L.J. 3145; Ahmed Hassan Muhammed vs. The Customs, 2021(2) JCC 1187 and Pardeep Kumar Gupta vs. State of Delhi, BAIL APPLN 2865/2020 decided by High Court of Delhi on 15.01.2021 . 4. On the other hand, the application has been vehemently opposed by the learned APP for the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narcotic Control Bureau, BAIL APPLN.3248/2021 dated 23.11.2021 and Bobby Collin vs. Narcotic Control Bureau, BAIL APPLN.812/2021 dated 19.04.2021. 5. I have given considered though to the contentions raised. A contention has been raised by learned counsel for the petitioner that the petitioner has been falsely implicated in this case, after being lifted prior to the alleged recovery and reliance is placed upon Call Detail Records. At the outset, it may be observed that the defence taken by accused/petitioner needs to be duly established during the course of trial. At this stage, the stand taken on behalf of the prosecution that IO was present in connection with investigation of another FIR No.192/19, P.S. Kamla Market supported with relevant DD entries, cannot be ignored. 6. In order to appreciate the contentions raised by learned counsel for the petitioner challenging the sampling procedure adopted by the Investigating Agency, the authorities relied upon may be briefly referred. (i) In Gaunter Edwin Kircher vs. State of Goa, Secretariat, Panji, Goa (supra), two cylindrical pieces of charas weighing 7 and 5 grams respectively were seized from the appellant by a police patrolling pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the substance along with the polythene bag was found to be 50 grams. The witness therein took the representative sample and after analysis came to conclusion that the substance analysed by him contained charas. It was contended therein that since the prosecution did not send the entire quantity i.e. 380 grams of charas for analysis, the remaining pieces in the form of cigars or flats cannot be presumed that they would contain charas or hasish. Reliance therein was placed upon Gaunter Edwin Kircher (supra) and it was held by the High Court that since the prosecution did not send all the pieces either in the form of cigars or flats for analysis but remains satisfied only by sending some of such pieces weighing about 50 grams and, therefore, applying the principles laid by the Apex Court, it was concluded that accused was found with only 50 grams of charas/hashish and not the entire quantity of 380 grams as contended by the prosecution and on failure of the prosecution to send all the cigars or flats found with the accused . I am of the considered opinion that the aforesaid case is also distinguishable wherein the quantity recovered was dissimilar i.e. both in the form of cigars or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) In Ahmed Hassan Muhammed vs. The Customs (supra), an intelligence had been gathered that the consignment imported vide bill of entry was containing contraband substance and had been put under preventive check. The consignment-wise goods as per MAWBs were found to be packed in 30 cartons, with each consignment containing 10 cartons per MAWBs. The cartons were then opened and examined one by one MAWB wise. The cartons marked Number A-1 to A-10, pertaining to MAWB Number 07133613414 were then examined. It was noticed that one carton was found sealed using lac. All the cartons bearing numbers A-1 to A-10 were then opened and examined. The said one carton bearing lac seal was found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves and one plastic package out of these 10 plastic packages was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. All the other Nine cartons were opened and examined and were found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed under the law. 19. This Court is informed that the petitioner is a Somalian National resident and his Refugee Certificate issued by UNHCR (United nation High Commissioner for refugees) was valid till 20/12/2019. Hence, he has a valid document to stay in India at the time of his arrest. He is in judicial custody since 04.02.2019. No doubt the recovered substance in the present case is of commercial quantity, however, the procedure prescribed is contrary to the dictum of this Court. This court is informed by learned counsel for the petitioner that petitioner is not a habitual offender and is not likely to get involved in any other case during bail. Thus, petitioner has qualified twin conditions of Section 37 of NDPS Act . 7. The judgments relied upon by the prosecution may now be briefly noticed. (i) In Anthony Umeh vs. State (supra), apart from the other contentions, it was contended that the entire alleged contraband was collected and thereafter samples were drawn in contravention of the law laid down by the Hon ble Supreme Court and para 208 of the Standing Order No.1/89. Reliance was also placed upon the decisions reported as AIR 2014 SC 1384 State of Rajasthan vs. Parma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packet, brown colour grass with leaves was found, which on being tested was found positive for Ganja. Each of the big packets was found to contain 5 Kgs. Approx and each of the small packets weighs 2 Kgs. Approx. The total quantity weighed to be 386 Kgs. Further, 58 packets were divided in separate lots of eleven and 48 small packets in two lots. All the packets recovered from the truck were thus divided in 13 lots. Two samples of 25 grams each was drawn from each lot (after taking small substance from each packet) and in total 26 samples were drawn. The complete seizure proceedings were conducted as per panchnama dated 25.03.2020. A seizure report under Section 57 of NDPS Act was accordingly submitted to the Superintendent, NCB by Shri Manoj Kumar, Jr.IO, NCB on 25.03.2020 regarding the seizure. It was therein contended that by collecting and mixing the contents of all the recovered packets in mixing the contents of all the recovered packets in lots and drawing samples subsequently, led to losing of the sanctity of the case property in each individual packet. Reliance is further placed on judgments passed by this Court in Amani Fidel Chris vs. NCB, decided on 13.03.2020 in Crl. A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sumit Tomer Vs. State of Punjab, Crl. Appeal No.1690-1691/2012 dated 19.10.2012 (SC). Furthermore, Delhi High Court in a recent judgment titled Santinu Simone Vs Department of Customs, Crl Appeal No.1088/2017 dated 05.10.2020 in paragraph 83 held that the prosecution had failed to establish that the content of each packet was separately tested however in present case prima facie the each packet were separately tested. Furthermore, any infirmity in the procedure which do not go into the root of the matter cannot be appreciated at this stage. 13. 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 02 lots. Two samples of 25 grams 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 acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty, these were mixed properly and transferred into a transparent polythene bag which weighed out to be 1.32 kgs. Further, two samples of 5 grams each were drawn. The contention was raised on behalf of the petitioner/accused that the samples were not individually drawn from 65 pellets/capsules and the sample sent to CRCL were not the representative samples of contraband from each pellet/capsule. Reliance was also placed upon Amani Fidel vs. Narcotic Control Bureau, Crl.A.1027/2015 decided on 13.03.2020 by the High Court as well as instruction 1/88 dated 15.03.88 of Narcotic Control Bureau. Reference was also made to Standing Orders 1/89 dated 13.06.89 issued under sub-section 1 of Section 52A of NDPS Act. Further, reliance was placed upon Union of India vs. Bal Mukund Ors., (2009) 12 SCC 161 and Noor Aga vs. State of Punjab Anr., (2008) 16 SCC 417 wherein Standing Order No.1/88 had been referred and sanctity of Standing Order No.1/89 was considered. The contention regarding alleged improper sampling did not find favour and it was observed in para 28 as under:- 28. Pertinently, the petitioner has approached this Court when only one prosecution witness remains to be examined and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 37(1)(b)(ii) for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity, there must exist reasonable grounds to believe at this stage that the person is not guilty of such an offence. In my considered opinion, there does not exist reasonable grounds at this stage to give a finding that the entire proceedings stand vitiated because of the alleged sampling procedure adopted by the Investigating Agency. The procedural deficiency in sampling, as contended by learned counsel for the petitioner, can be considered only after the evidence is led on record. The observations of learned Trial Court in order dated 07.09.2021 are also relevant in this regard. ..Even if for the sake of arguments, it is presumed that accused/applicant is liable for possession of one packet only, even then accused/applicant is not entitled to bail as a matter of right. 200 grams of heroin is more than small quantity but less than commercial quantity. The facts and circumstances of the present case are very different from the facts and circumstances of the cases upon which reliance has been placed by Ld. Counsel for accused/applicant. The other contentions raised by ..... 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