Document Fragment View

Matching Fragments

4. Learned counsel for the Applicant primarily and inter alia urges that Applicant is innocent and has been falsely implicated. There are serious procedural violations in the sampling procedure followed by the prosecution as laid down in Standing Order No.1/89 dated 13.06.1989 issued by the Ministry of Finance, Government of India. According to the prosecution, 09 kattas were recovered from the car and each had small packets inside though it is not mentioned as to how many packets were recovered nor was it mentioned as to what is the quantity and/or weight of the alleged ganja in each of these packets. Prior to taking the sample from each packet, the Police officials mixed them to make a homogenous mixture which is not permissible under the Standing Order. Neither Form 29 nor CFSL form were filled at the spot by the SHO or the Magistrate. Sampling was in the absence This is a digitally signed order.

7. I have heard learned counsel for the Applicant and the learned APP and examined the rival contentions.

8. Amongst other grounds, the main plank of the argument of the Applicant is that there is total non-compliance of the mandatory procedure laid down in Standing Order No. 1/89 dated 13.06.1989 issued by Ministry of Finance, Government of India which prescribes a procedure for sampling of narcotic drugs and psychotropic substances. Before proceeding to examine the contentions of the parties, it would be relevant to examine the applicable provisions of the NDPS Act and look at the judicial precedents on the issue. Section 52 of the NDPS Act deals with measures that are required to be taken by an Officer for disposal of persons arrested and articles seized. Section 52A NDPS Act provides the procedure for disposal of seized narcotic drugs and psychotropic substances including the procedure for sampling. For ready reference, Section 52A is extracted hereunder:-

31. Pursuant to appreciation of contentions of the parties as well as documents on record, this Court is of the considered opinion that the petitioner is entitled to be enlarged on bail subject to certain conditions.
32. The fact that the contraband which was seized contained in 2000 pudiyas 100 each in 20 bags, were all emptied together in a plastic jar, was prima facie not in compliance with the process envisaged under the SO 1/88 and 1/89, as adverted to above. The procedure, in compliance with the standing orders, could have been adopted, inter alia to make lots of a bunch of pudiyas together, as envisaged in the SO. By mixing all the pudiyas together, the sample was not a true representative sample and the composition of the mix would therefore, would be at a serious variance. Even though these are issues which would have to be considered at the point of trial, it would still import an element of reasonable doubt in the sampling procedure undertaken."

14. In Sandeep (supra), this Court was once again called upon to decide the issue of entitlement of an accused to bail on the ground that sampling procedure adopted by the Investigating Officer was not in consonance with the Standing Orders and the judgments on the subject. Relying on several judicial precedents, Court held as under:-