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3. (i). Learned counsel for the petitioner submits that search of petitioner had been conducted in violation of Section 50 of NDPS Act since the search was not conducted in presence of gazetted officer. He further submits that that there is violation of Section 52A of NDPS Act as well as Standing Orders 1/88 & 1/89 issued in this regard. Specific attention is drawn to paragraphs 2.1, 2.3 and 2.5 of Standing Order 1/89. It is pointed out that there has been infirmity in drawing the samples since the contents of 18 packets in the iron box were mixed together and thereafter two samples of 04 kgs. each were drawn for the purpose of FSL result. Similar procedure is stated to have been adopted for drawing of samples in respect of 11 packets recovered from the suitcase and 06 packets recovered from carry bag.

Petitioner challenges the non-compliance of standard procedure provided in paragraphs 1.6 and 1.7A of the Standing Order No.1/88 which provides for drawing a sample in duplicate from each package/container in case of seizure of more than one packet or container. The case of the petitioner is that sample ought to have been taken from each of the respective packets alleged to have been found in respective three bags instead of the procedure adopted by the Investigating Agency of drawing the sample after mixing of the packets in each respective bag. The provisions in Standing Order No.1/89 in this regard are also stated to be pari materia with the Standing Order No.1/88 with some additional modifications.

9. This Court has observed in Shailender v. State of NCT of Delhi, Bail Appln.3508/2021 decided on 03.08.2022 that procedural lapses have to be determined during the course of trial and the prejudice caused by the non- compliance has to be shown by the accused. Relevant observations in para 8 in this regard may be reproduced for reference:

"8. It may be observed that the proposition of sending entire quantity seized for chemical analysis may not be practicable in several cases. The drug peddlers and suppliers appear to be adopting the unique and novel methodology to escape law, by carrying large number of smaller packets which later on, is challenged on the ground of improper sampling during investigation. In Gaunter Edwin Kircher vs. State of Goa, it was prima facie established by the accused that the recovered substance consisted two separate forms but only a part of the same which was a flat substance and not in the form of cigars was forwarded. As such, benefit was extended at the stage of appeal since no finding could be given that other part of the alleged recovered substance, which was not forwarded for examination could be presumed to be a narcotic substance. However, the factual position in the present case is distinct. 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 substance recovered in 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.
37. In view of the aforesaid position and circumstances, the present application is dismissed and disposed of accordingly."

12. It may also be relevant to notice that in Saddad Alam v. State (Govt. of NCT of Delhi), Bail Appln. 2475/2023, commercial quantity of ganja i.e. 20.80 kgs. was recovered from the petitioner and proceedings were similarly challenged on the ground of procedural lapse in drawing of samples which had been drawn after mixing of contents of the respective packets. Relying upon Masibur Khan v. State (Govt. of NCT of Delhi) (supra) and other judgments, it was held by the Co-ordinate Bench of this Court that validity of proceedings under Section 52A of NDPS Act cannot be examined at the stage of consideration of bail and the application for bail was accordingly dismissed. The order passed in the aforesaid case was not interfered with by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.15127/2023 decided on 28.11.2023.