9911796707
TMI Blog2023 (8) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... al analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act. The judgment of the Supreme Court in Bothilal s [ 2023 (4) TMI 1188 - SUPREME COURT ] also makes it clear as to in what manner the prosecuting agencies are to not only prepare an inventory of the contraband seized but also the manner in which the Magistrate alone is empowered or competent to draw the samples in accordance with Sections 52A(2)(c) of NDPS Act. The same appears, prima facie, to have been violated in the present case. This Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - the bail application stands disposed of. - HON'BLE MR. JUSTICE TUSHAR RAO GEDELA For the Appellant : Mr. Abhik Kumar, Mr. Sumit K Shukla, Ms. Radha R. Tarkar, Mr. Rinku Mathur and Mr. Aaron Shaw, Advocates For the Respondent : Mr. Yudhvir Singh Chauhan, APP with ASI Neeraj Kumar, P.S. Crime Branch ORDER [The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 at page no. 118. It also shows that learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer. 9. So it is true that the directions in para no. 31(1) of the observations in case of Union of Indian Vs. Mohanlal (Supra) were not followed. Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office. In case of Simarnjit Singh s. State of Punjab, decided by the Hon ble Supreme Court in Criminal Appeal No. 1443 of 2023 on 09/05/2023, the Hon ble Supreme Court has refused to accept analysis done on the basis of the samples taken at the spot and set aside the conviction. 10. Learned counsel also relies upon the judgment of Hon ble Supreme Court in Jagmohan Bahl and Another vs. State (NCT of Delhi) and Another reported in (2014) 16 SCC 501, in which case the Supreme Court had held that the embargo under Section 37 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the applicant shall not involve himself in similar activities once released on bail, also cannot be ruled out, atleast for the present. 18. Learned APP also relies upon the FSL report chemically certifying that the recovered contraband was indeed Charas. In that view of the matter, learned APP submits that the applicant does not deserve to be released on bail. 19. This Court has given thoughtful consideration to the arguments advanced and the documents placed on record. 20. It is undisputed that the applicant has been behind bars from 16.10.2019, the day when he was arrested, barring being released on interim bail for a period of 40 days in all. The applicant has now been in judicial custody for a period a little more than 3 years 7 months, which is undisputed. 21. It is also undisputed that there was no recovery made from the applicant or from his person. In fact, according to the case of the prosecution, the seizure was effected from the co-accused Suraj even before the contraband allegedly exchanged hands. 22. No doubt that the quantity seized is 10 kgs and would come within the commercial quantity, however, keeping in view the fact that no recovery was effected from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 37 of NDPS Act are concerned, also will be applicable since there has been no recovery effected admittedly, apart from the fact that the applicant has been in continuous incarceration for a period more than 3 years 7 months till date. 28. Keeping the aforesaid in view, this Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the conditions as under:- a. He shall surrender his passport, if any, to the Court concerned and shall under no circumstances leave Delhi without prior permission of the Court concerned; b. He shall cooperate in the trial and shall appear before the Court as and when required; c. He shall provide his mobile number(s) to the SHO/IO of concerned Police Station and keep it on his person and operational at all times; d. He shall not indulge in any criminal activity whatsoever; e. He shall drop a PIN on the Google map to ensure that his location is available to the SHO/IO of the concerned Police Station; f. He shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
