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iv. The present applicant was apprehended on 02.03.2020 at the instance of the co-accused. After completion of investigation, chargesheet was filed before the Court of competent jurisdiction. It is submitted that a total of 7 out of 21 witnesses have been examined.

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. It is further submitted that the procedure for sampling of the recovered contraband, as followed was not in accordance with the mandate of Standing Order No. 1/88, dated 15.03.1988, issued by the Narcotics Control Bureau and Standing Order No. 1/89, dated 13.06.1989, issued by the Government of India, Ministry of Finance (Department of Revenue). It has been contended that the samples drawn are not the true representative samples of the entire contraband recovered from the applicant inasmuch as the samples have been drawn after mixing of the contraband recovered from packets.

25. On the other hand, a coordinate bench of this Court in Bipin Bihari Lenka v. Narcotics Control Bureau, 2022 SCC OnLine Del 1160 rejected the bail application and observed that alleged prejudice caused to the applicant on account of non-compliance of sampling procedure would have to be established during the course of trial. It was held as under:

"23. Similarly, in Basant Rai v. State [Basant Rai v. State, 2012 SCC OnLine Del 3319] , under somewhat similar circumstances accused was found carrying polythene bag containing eight smaller polythene bags having brown colour substance and IO took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis.

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."

26. 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.