Bail Denied: Procedural Sampling Issues in NDPS Act to Be Addressed at Trial, Not Bail Stage.

The HC dismissed the bail application, emphasizing that procedural deficiencies in sampling under the NDPS Act should be examined during the trial, not at the bail stage. The Court found no grounds for bail, as the twin conditions under Section 37 of the NDPS Act were not satisfied. Pending applications were also disposed of.

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Issues Involved:
1. Defective Sampling Procedure
2. Compliance with Section 52A of NDPS Act
3. Applicability of Standing Orders and Notifications
4. Prejudice to the Accused
5. Grounds for Bail under Section 37 of NDPS Act

Issue 1: Defective Sampling Procedure

The petitioner sought bail on the ground of defective sampling procedure adopted by the Investigating Officer. The counsel argued that the Investigating Officer mixed the contents of 10 packets recovered from the petitioner and drew samples from the mixture, contrary to law.

Issue 2: Compliance with Section 52A of NDPS Act

The counsel for the petitioner submitted that the prosecution failed to produce all packets before the Magistrate for sampling as required under Section 52A of the NDPS Act, relying on Standing Orders 1/88 and 1/89 and a notification dated 23.12.2022.

Issue 3: Applicability of Standing Orders and Notifications

The Court noted that Standing Order 1/88 and 1/89 were issued under Section 52 of the NDPS Act, and a subsequent notification dated 23.12.2022 was issued under Section 76 read with Section 52A. However, the notification dated 23.12.2022 was not applicable as the contraband was seized on 27.06.2021.

Issue 4: Prejudice to the Accused

The Court observed that the issue of defective sampling and its compliance with standing orders is a matter of evidence to be appreciated at the time of trial. The accused must establish prejudice caused due to non-compliance with the sampling procedure.

Issue 5: Grounds for Bail under Section 37 of NDPS Act

The Court referred to precedents where non-compliance with sampling procedures was considered at the trial stage and not at the bail stage. The Court held that the procedural deficiency in sampling could be considered only after evidence is led on record. The Court emphasized that the twin conditions of Section 37 of the NDPS Act must be satisfied for granting bail in cases involving commercial quantity.

Conclusion:

The Court dismissed the bail application, stating that the applicant would have ample opportunity to prove the defective sampling during the trial. The Court found no grounds for bail at this stage, emphasizing that the procedural instructions must be followed, and any non-compliance would be examined during the trial. The application was dismissed, and the pending applications were also disposed of.

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