Allahabad High Court
Basant vs State Of U.P. on 19 October, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 91 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32624 of 2020 Applicant :- Basant Opposite Party :- State of U.P. Counsel for Applicant :- Deepak Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the material brought on record.
The present bail application has been filed on behalf of the applicant, Basant, with a prayer to release him on bail in Case Crime No. 295 of 2020, under Sections 8/20 N.D.P.S. Act, Police Station- Khekra, District- Baghpat, during pendency of trial.
The submission advanced by learned counsel for the applicant is that the quantity of the material obtained from the possession of the applicant is that 40 packets (amounting 90 kgs of ganja) of the contraband material was found but the sample has not been taken from each packet which is also evident from the F.I.R.. Hence, it could not be said that the amount of contraband material obtained is of such quantity as has been shown by the police. It is also submitted that there is no eye witness present of the alleged incident. Further contention is that the statutory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 have not been complied with in the right manner. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 10.08.2020.
In support of his argument, learned counsel for the applicant has placed reliance upon the judgment of Jaswinder Singh and Another Vs. State of Punjab 2012 LawSuit (P&H) 5446 wherein sampling of packets has been well considered. Counsel in this regard has also tried to place reliance upon the judgment given earlier by the preceding Bench of this Court in the case of Haider Ansari Vs. State of U.P., wherein it was submitted that The Narcotic Control Bureau, New Delhi by issuing standing Instruction No.1/88 has laid down the standards of procedure to be followed in the matters of recovery of contraband substances and taking of their samples. These instructions have been issued with a view to bring uniformity of approach in such matters and also to provide for a secure system of handling of drugs' samples which is to standardise the procedure with regard to drawing, forwarding and testing of samples. The relevant portions of the said instructions are being reproduces herein below :-
"1.5.- Place and time of drawal of sample "Samples from the Norcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."
1.6.- Quantity of different drugs required in the sample "The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all norcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous 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 given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, 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) Where-after 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 in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
1.8.- Numbering of packages/containers.
Subject to the detailed procedure of identification of packages/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.
1.9.- "It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample."
1.10.- Packing and sealing of samples "The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. Of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."
Learned AGA for the State has vehemently opposed the prayer for bail but could not argue the aforesaid fact.
Having considered the material on record, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short-term bail comes to an end.
5. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
6. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
7. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 19.10.2020 shiv