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Submissions of the learned counsel for the Applicant

16. The learned counsel for the applicant submits that the procedure of sampling carried out by the respondent is not in terms of the Standing Order Nos. 1/88 dated 15.03.1988 issued by Narcotics Control Bureau and 1/89 dated 13.06.1989 issued by the Department of Revenue, Ministry of Finance, Government of India (hereinafter referred to as the 'Standing Orders'). He submits that it is the own case of the prosecution that a total number of 119 capsules were recovered from the co-accused Mr.Noorzai Gul Amin. The samples from these 119 capsules were drawn and tested. Thereafter, the contents of these 119 capsules were mixed together to form a whole from which samples were thereafter drawn. He submits that the same would be a violation of the abovementioned Standing Orders. He submits that this, itself, would create a doubt on the case of the prosecution, entitling the applicant to be released on bail. In support, he places reliance on the judgments of this court in Amani Fidel Chris v. Narcotics Control Bureau (2020) SCC OnLine Del 2080; Betty Rame v. Narcotics Control Bureau (2023) SCC OnLine Del 3279; and, Ginkala Meddilety v. State (2023) SCC OnLine Del 5450.

22. He further submits that the effect of any alleged defect in the sampling procedure or delay in the same, has to be considered by the Court at the time of the trial, and it cannot be a ground to release the applicant on bail. He submits that the purpose of Section 52A of the NDPS Act is for the disposal of the case property after making inventory and keeping the samples of seized contraband. It is for the purpose of keeping representative samples for being exhibited during the course of the trial as primary evidence. He submits that the Standing Orders No.1/88 and 1/89 are merely advisory in nature and not mandatory. Their non-compliance is neither fatal to the case of the prosecution nor does it entitle the accused to be released on bail. The effect of such non-compliance can only be determined at the conclusion of the trial, where the accused would have to show the prejudice caused due to such non-compliance. He submits that, in the present case, there was a substantial compliance with the said Standing Orders and, therefore, the accused not be released on bail.

33. The applicant has also made out a case for being released on bail on the ground of delay in the sampling procedure being carried out under Section 52A of the NDPS Act. The recovery was allegedly made on 22.08.2019; application under Section 52A of the NDPS Act was filed only on 13.02.2022 before the learned Magistrate; and samples were drawn only on 25.02.2023, that is, after a period of almost 1⅟2 and 2⅟2 years of the recovery.

34. In Kashif (Supra), a Coordinate Bench of this Court considered the effect of delay in the sampling procedure and held that even a delay of one and a half months, as was the case therein, raises a doubt sufficient enough to entitle the accused to be released on bail. The Court observed as under:-

"24. Hence, I am of the view that non- compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering.