Full Text
HIGH COURT OF DELHI
Date of Decision: 17.01.2023
SANTOSH ..... Petitioner
Through: Mr. Rahul Sharma, Mr. Ishwar Singh, Mr. S. Santanam Swami Nathan, Ms. Abhilasha Sherawat, Mr. Akshat Maheshwari, Mr. Deepak Ghai, Ms. Yash Kumar, Advs.
Through: Mr. Aashneet Singh, APP for State
JUDGMENT
1. This is an application seeking grant of bail in FIR No.482/2019 under Section 21 of NDPS Act registered at PS Bharat Nagar, Distt. North West.
2. The FIR states that the applicant was apprehended at B-123 Block, J.J. Colony, Wazirpur. On her search, 33.59 gram of smack was found in 258 pouches.
3. As per the FIR, it is stated that the contraband from the 258 pouches was mixed and thereafter samples were drawn. Thereafter, notice under Section 50 was issued and thereupon proceedings were conducted.
4. It is stated by Mr. Sharma, learned counsel for the petitioner that as per FIR, it is clear that the samples were mixed by the respondent and hence, the sample itself is vitiated /contaminated. He relied upon the judgement of Coordinate Bench of this Court titled as “Ram Bharose vs. State” in Bail Application No.1623/22 where it has been observed: “...as has been observed by the Co-ordinate Bench of this Court vide paragraph 15, 16, 17, 18 and 33 thereof to the effect:- “15. In view of the stringent provisions of the NDPS Act, the issue to be considered is whether the procedure specified under the Standing Orders can be flouted.
16. A combined reading of paras of the Standing Orders would show that there were more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the „field testing kit‟. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 of 40 containers/packages may be prepared and thereafter representatives samples from each container/package in a particular lot are to be drawn, mixed and sent for testing.
17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.
18. In the present case, four packets containing suspicious powdery substance were found concealed in a „stroller bag‟. On testing with the „field testing kit‟, the powder in each packet tested positive for heroin. The IO without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixure. xxxxx xxxxx xxxxx
33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 2685 Kulwinder Kumar vs. State of Punjab, reported as 2018 SCC Online P&H 1754 and Santosh Kumar vs. The State of Bihar passed in Criminal Appeal (SJ) No. 158/2016 decided on 30.08.2019”. ARORA
5. This Court in judgement dated 14.12.2022 titled “Laxman Thakur vs. State” has observed that:-
60. In Edward Khimani Kamau (supra), a Coordinate Bench of this Court rejected the procedure where the substance found in nine packets was transferred into one packet and two samples were drawn from the same. The Court held that it could not be ascertained that all nine packets contained heroin.
61. In Charlse Howell @ AbelKom (supra), the NCB had allegedly recovered 330 grams of heroin. The powder recovered was packed in 166 polythene strips, which were concealed in the laces/hem of two lehengas. The concealed powder from the 166 strips was collected in a transparent polythene and on weighing, it was found to be 330 grams. Two samples of five grams were drawn and put separately in zip lock polythene pouches. A Coordinate Bench of this Court following the decision of the Supreme Court in Union of India v. Bal Mukund, (2009) 12 SCC 161, held that the procedure adopted was not in conformity with the Standing Order 1/88 dated 15.03.1988, issued by the Narcotics Control Bureau.”
6. I am of the view that as mandated by the Hon‟ble Supreme Court in judgment of „Union of India vs. Bal Mukund & Ors.‟ [(2009) 12 SCC 161], standing order 1/88 is a “requirement of law”.
7. Relevant portion of Standing order 1/88 reads as under: “2.[4] In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to ARORA draw one sample (in duplicate) from each packet/container in case of seizure of more than one package/container.”
8. 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.
9. I am of the view that in the present case, the instructions in S.O. 1/88 have 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. The collection of sample itself is faulty.
10. In addition, the quantity recovered from the applicant is an intermediate quantity and does not fall within the ambit of commercial quantity. The rigours of Section 37 of NDPS is therefore not applicable.
11. Furthermore, the applicant is also an AIDS (PLHA) patient and is also in need of medical attention, as her immunity is compromised.
12. In view of the above, the applicant is directed to be released on bail in aforesaid FIR on the following terms and conditions: a) The applicant shall furnish a personal bond in the sum of Rs.25,000/- to the satisfaction of the Trial Court; b) The applicant shall join investigation as and when called by the I.O. concerned; c) The applicant shall provide her mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail; ARORA d) In case the applicant changes her address, she will inform the IO concerned and this Court also; e) The applicant shall not leave the country during the bail period and surrender her passport, if any, at the time of release before the I.O. concerned; f) The applicant shall not indulge in any criminal activity during the bail period. g) The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or tamper with the evidence of the case.
13. The observations made hereinabove are only for the purpose of deciding the bail application and will have no bearing on the trial.
14. Hence, the application is allowed and disposed of.
JASMEET SINGH, J. JANUARY 17, 2023 ARORA