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TMI Blog2024 (1) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... Investigating Agency. The Court also found the reason given by the learned Trial Court for rejecting the bail to the accused therein, which was that the quantity found even in one package was intermediatory in nature, to be relevant to refuse the bail. The said judgment may not be applicable in the facts of the present case inasmuch as the prosecution has made no endeavour to explain why the procedure set out in the Standing Orders was not followed. In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. There is also no prior history of any prosecution being pending against the accused persons herein. The accused have already been in custody for more than a year. Both the accused are aged around 20 years and the trial is likely to take long. The applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail - it is directed that the applicants be released on bail subject to fulfilment of conditions imposed - bail application allowed. - Hon'ble Mr. Justice Navin Chawla For the Petitioner : Mr. Hiren Sharma, Mr. Vimal Tyagi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52A(2) of the NDPS Act. The same was carried out on 05.11.2022, and as per the Order, it is reflected that while seizing the substance recovered from the trolley bag carried by accused Sandeep @ Chiku, 8 brown packets which were recovered had been emptied into a green polythene and mixed all together. From this mixed quantity, samples were drawn. Similarly, the substance recovered from 4 brown packets that were being carried by accused Sandeep in a backpack had again been mixed together and kept in a green polythene. It was from this mixed quantity that samples were drawn before the learned Metropolitan Magistrate. The same procedure had been followed for the accused Vineet. Applicant s Submissions 6. The learned counsels for the applicants submit that the sampling procedure followed by the prosecution is in violation of the Standing Order No.1/88 dated 15.03.1988 issued by Narcotics Control Bureau, and the Standing Order no.1/89 dated 13.06.1989 issued by the Department of Revenue, Ministry of Finance, Government of India. 7. Placing reliance on the judgments of this Court in Laxman Thakur v. State (Govt. of NCT of Delhi), 2022 SCC OnLine Del 4427; Amina v. State NCT of Delhi (202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides for the disposal of the persons arrested and article seized under Section 41, 42, 43 or 44 of the NDPS Act. It reads as under: 52. Disposal of persons arrested and articles seized. (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under subsection (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. (Emphasis supplied) 13. Section 52 of the NDPS Act mandates that the authority or officer to whom any person or article is forwarded unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any list of samples so drawn. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) 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. 15. A reading of Sub-Section 2 of Section 52A read with Section 52 of the NDPS Act would show that where any narcotic drugs and psychotropic substances, controlled substance or conveyances are seized, they shall, without unnecessary delay, be forwarded to the Magistrate by whom warrant was issued or to the Officer-In-Charge of the nearest Police Station or to the Officer empowered under Section 53 of the NDPS Act. The Authority or the Officer to whom such seized articles are forwarded shall, with all convenient dispatch, take such measures as may be necessary for the disposal thereof, according to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.7 Number of samples to be drawn in each seizure case a) In the case of seizure of a 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/containers 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 may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. d) If it is 5 or more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainer 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs (in case of ganja and hashish lots of 40 packages/containers) and for each of such lots of packages/containers, one sample (in duplicate) may be drawn. Clause 2.8 states that, while drawing the samples from a particular lot, it must be ensured that representative samples in equal quantity are 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. Therefore, the identity of the packages/containers including their contents has to be preserved while drawing the samples. They cannot all be mixed together to thereafter draw samples. The Standing Order only allows that where the lots of such packages/containers are prepared, samples in equal quantity are taken from each packages/containers of that lot, mixed together, and thereafter sample drawn from such composite whole of samples. 19. In the present case, the above procedure has been completely violated and not adhered to by the prosecution. As noted hereinabove, the prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers, however, cannot totally ignore these provisions . Therefore, in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is the most critical procedure to be 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. xxx 29. The adherence to strict process under the NDPS Act has certain important function and purpose. The Hon‟ble Supreme Court has often reemphasized that considering the provisions of the NDPS Act are stringent in nature and provide twin conditions as a threshold for granting bail under Section 37 of the Act, compliance by the investigating agencies has to be necessarily precise and not ad hoc or half-hearted or truncated in nature. 30. The lack of compliance of these provisions necessarily imports an element of doubt , moreover a reasonable doubt . This, therefore will segway into the issue of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding that the entire proceedings stand vitiated because of alleged sampling procedure adopted by the Investigating Agency. The Court also found the reason given by the learned Trial Court for rejecting the bail to the accused therein, which was that the quantity found even in one package was intermediatory in nature, to be relevant to refuse the bail. The said judgment may not be applicable in the facts of the present case inasmuch as the prosecution has made no endeavour to explain why the procedure set out in the Standing Orders was not followed. 26. In Saddad Alam (supra), the accused therein had been earlier arrested in a similar case and had been released on bail on the condition that he will not commit any other offence while on bail. The accused had violated the said condition imposed by the concerned Court and, therefore, was held not entitled to be released on bail. 27. The High Court of Bombay in Mukesh Rajaram Choudhari (supra) has held that non-compliance with the procedure under Section 52A of the NDPS Act cannot mean that the accused automatically becomes entitled to bail as a matter of right. In my view, however, the non-compliance with the provisions of Section 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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