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3. Learned counsel appearing on behalf of the applicant seeks bail only on the ground of defect in sampling procedure adopted by the Investigating Officer at the time when the recovery and seizure made in present case. Learned counsel appearing on behalf of the applicant submitted that an application under Section 52A of the NDPS Act for drawing of samples from seized inventory of drugs was filed before the learned Trial Court. It is submitted that two pulandas marked P-1 and P-2 were produced. From the pulanda marked P-1 weighing 8.66 kg (recovered from the co-accused), two samples of 5 grams each were drawn and sealed in two zip-lock bags. From the pulanda marked P-2 weighing 10.70 kg (recovered from the present applicant), two samples of 5 grams each were drawn and sealed in two zip- lock bags.

viii. Union of India v. Mohanlal & Anr., (2016) 3 SCC 379.

 ix.        UOI v. Bal Mukund & Ors., (2009) 12 SCC 161.
                      x.        Sachin Kumar v. State (Govt. of NCT of Delhi), Order dated
                                26.04.2023 in BAIL APPLN 557/2023.

8. Per contra, learned counsel appearing for the Customs argued that the sampling procedure is proper and no defect can be attributed to the procedure adopted by the Investigating Officer in the aforesaid cases. It was additionally argued that the issue whether the sampling procedure was in accordance with the aforesaid standing orders or not is a matter of evidence to be appreciated at the time of trial and therefore, cannot be examined at this stage. It has been contended that the applicants have to establish prejudice caused to them on account of the alleged non-compliance with the appropriate procedure for sampling.

27. In the facts and circumstances and considering the connecting evidence on record, wherein the contraband has been recovered from private vehicle driven by the petitioner, I am of the considered opinion that no grounds for grant of bail are made out in the light of twin conditions laid down in Section 37 of the NDPS Act."

23. Similarly, vide order dated 03.08.2022 passed in BAIL APPLN. 3508/2021 titled Shailender v. State NCT of Delhi, a coordinate bench denied bail to the applicant therein by holding that the procedural lapse has to determined during the course of the trial and not in a proceeding for grant of bail. In Shailender (supra), after discussing various judgments passed by coordinate benches of this Court on the issue of sampling procedure, it was has held as under:

Though 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 different packets was of similar texture, colour and tested positive on field testing. The circumstances under which the sampling procedure could not be followed as per the mandate, needs to be duly considered after the evidence has been led on record and the FSL expert is examined. 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 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.