TaxTMI 
TaxTMI 
2023 (6) TMI 364
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....from Doha. ii. After searching the beige colour checked-in trolley bag having Tag no.0157392647, carried by the present applicant, it was found that the bag contained clothes and old & used personal effects and 05 nos. of paper boxes of BOKOMO WEET-BIX wholegrain wheat Biscuits. It was further noticed that some Off-white coloured powdery substance/granules totally weighing 10000 grams (approx.) were kept inside 10 transparent plastic packets each placed inside white coloured cloth packet having circular stamp in blue colour marked with 'BLUE SAPHIRE 555 & 999 inside the circular stamp further placed inside one or two (in few cases) outer transparent plastic packet(s). Two such outer transparent plastic packets were further placed inside brown taped plastic packet. 04 such brown taped plastic packets were placed inside 04 paper boxes of BOKOMO WEET-BIX* wholegrain wheat Biscuits. 02 brown taped plastic packets each containing one above mentioned outer transparent plastic packet were placed inside 01 paper box 1 of BOKOMO WEET-BIX wholegrain wheat Biscuits. The said off-white coloured powdery substance/granules weighing 10000 grams (approx.) recovered from checked-in trolley....
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....mples were drawn before Ld. Magistrate as per details mentioned in Order dated 15.07.2021. Panchnama dated 27.06.2021 related to recovery from accused was produced before Ld. MM and the same was certified to the effect that the particulars, sealing, weight, and colour etc. of the case property are correct as mentioned in the said panchnama. All the proceedings of the said date were duly photographed and photos were duly attested/certified by Ld.MM vide order dated 26.07.2021. ix. That samples mark S01 & S02 along with Test Memo were sent to CRCL by Dy./Jt. Commissioner, Customs vide letter dated 23.07.2021. The samples were duly received and acknowledged in seal intact condition by the CE, CRCL vide receipt dated 23.07.2021. Further, vide report dated 08.09.2021 in respect of Sydney John-Brain O' Grady (co-accused) and the present applicant samples were opined positive for Heroin, which is a narcotic drug. Remnant samples received from CRCL were deposited in the godown vide DR No. 27673 in respect of Sydney John-Brain O' Grady (co-accused) and vide DR No. 27674 in respect of the present applicant. 3. Learned counsel appearing on behalf of the applicant seeks bail only o....
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....f NCT of Delhi), Judgment dated 14.12.2022 in BAIL APPLN 3233/2022. iv. Samuel Okeke v. State, Judgment dated 28.09.2020 in CRL.A 915/2016. v. Uchenne v. The State, Order dated 10.10.2022 in BAIL APPLN 3912/2021. vi. Edward Khimani Kamau v. The Narcotics Control Bureau, 2015 SCC OnLine Del 3860. vii. Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080. viii. Union of India v. Mohanlal & Anr., (2016) 3 SCC 379. ix. UOI v. Bal Mukund & Ors., (2009) 12 SCC 161. x. Sachin Kumar v. State (Govt. of NCT of Delhi), Order dated 26.04.2023 in BAIL APPLN 557/2023. 8. Per contra, learned counsel appearing for the Customs argued that the sampling procedure is proper and no defect can be attributed to the procedure adopted by the Investigating Officer in the aforesaid cases. It was additionally argued that the issue whether the sampling procedure was in accordance with the aforesaid standing orders or not is a matter of evidence to be appreciated at the time of trial and therefore, cannot be examined at this stage. It has been contended that the applicants have to establish prejudice caused to them on account o....
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....osecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution. xxx 25....(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case." (emphasis supplied) 12. It is pertinent to note that Section 52A of the NDPS Act was added by 1989 Amending Act with effect from 29.05.1989. Section 52 A of the NDPS Act provides as under: "52A. Disposal of seized narcotic drugs and psychotropic substances.- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage spa....
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....d seizure. 13. Power of the Central Government to make rules under Section 52 and Section 52A are provided for in Section 76 of the NDPS Act which provides as under: "76. Power of Central Government to make rules.- (1) Subject to the other provisions of this Act, the Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-.." xxx (de) the disposal of all articles or things confiscated under this Act. (df)the drawing of samples and testing and analysis of such samples" (emphasis supplied) 14. It is pertinent to point out that the Standing Order No. 1/88, dated 15.03.1988 was issued by the department under the provisions of Section 52 of the NDPS Act. In exercise of powers conferred by Section 52A(1) of the NDPS Act, Government of India, Ministry of Finance, Department of Revenue issued a standing order No. 1/1989 dated 13.06.1989. Subsequently, in exercise of powers conferred by Section 76 read with Section 52A of the NDPS Act, Gov....
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....l. The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance with the mandatory statutory provisions vis-à-vis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination having been doubted, we do not see any reason why we should take a contrary view as it is well known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it is trite, the appellate court shall not interfere. (See Animireddy Venkata Ramana v. Public Prosecutor, High Court of A.P. [(2008) 5 SCC 368 : (2008) 2 SCC (Cri) 600] )" The aforesaid judgment does not alter or set aside the ratio in the judgment of Balbir Singh (supra). It is pertinent to note that the judgment in Bal Mukund (supra) was rendered in an appeal against acquittal, i.e., after completion of trial and therefore, the effect of non-compliance of the statutory provisions was examined in favour of the accused. 17. A co-ordinate bench ....
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....at even if the said instructions are not considered as binding, they lay down a procedure which the Investigation Officers are required to follow in the interest of ensuring that the samples drawn truly represent the composition of the substance recovered." Thereafter, in Santini Simone (supra), the Court proceeded to examine the evidence that was recorded in the said case and after a detailed and thorough examination of the evidence, and especially the testimony of the seizing officer discussed in paragraphs 69, 70, 71, 72 and 73, finally came to the conclusion which is as under: "74. In view of the above, this Court is unable to accept that the prosecution has established that the contents of each of the four packets that were allegedly recovered, were tested and found to be charas prior to the contents of the said packets being placed together." 18. At this stage, it is pertinent to note that the aforesaid judgments, i.e., Bal Mukund (supra) and Santini Simone (supra), as also the other judgments relied upon by learned counsel for the applicant, i.e, Basant Rai v. State, 2012 (13) DRJ 471; Edward Khimani Kamau v. The Narcotics Control Bureau, 2015 SCC OnLine Del 3....
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....procedure prescribed under the law. 19. This Court is informed that the petitioner is a Somalian National Resident and his Refugee Certificate issued by UNHCR (UNITED NATION HIGH COMMISSIONER FOR REFUGEES) WAS VALID TILL 20-12- 2019. Hence, he has a valid document to stay in India at the time of his arrest. He is in judicial custody since 4-2-2019. No doubt the recovered substance in the present case is of commercial quantity, however, the procedure prescribed is contrary to the dictum of this Court. This Court is informed by learned counsel for the petitioner that petitioner is not a habitual offender and is not likely to get involved in any other case during bail. Thus, petitioner has qualified twin conditions of Section 37 of NDPS Act. 20. Keeping in view the aforesaid fact, I am of the view that petitioner deserves bail. Accordingly, petitioner is directed to be released on bail forthwith on his furnishing personal bond in the sum of Rs 25,000 with one surety in the like amount, to the satisfaction of the trial court." 20. Further, vide order dated 05.08.2022 passed in BAIL APPLN. 1623/2022 titled Ram Bharose v. State (Govt. of NCT of Delhi), another coordi....
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....ions had been made that the involvement was alleged on the basis of conspiracy and no incriminating material was recovered from the person of the petitioneraccused therein. 25. Observations of the learned trial court in order dated 6-8-2021 while dismissing the application on the point of sampling may be noticed: "As the recovery was from the truck which he was driving therefore, there is definite presumption under Sections 35 and 54 of the NDPS Act against this accused at this stage, which could be rebutted during trial (Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465 : 2003 SCC (Cri) 1664] and Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 : (2015) 3 SCC (Cri) 881] ). The substance from each packet was tested individually and was found positive for ganja thereafter, all the 106 packets were divided into 13 lots and total 26 samples were drawn after mixing of the substance homogeneously and this procedure was found as due compliance as per mandate of judgment Sumit Tomar v. State of Punjab [Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 : (2013) 1 SCC (Cri) 514] . Furthermore, Delhi High Court in a re....
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....ged 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 BAIL APPLN No.3508/2021 Page 21 of 22 different packets was of similar texture, colour and tested positive on field testing. The circumstances under which the sampli....
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....rt finds no ground to grant bail to the petitioner on this ground." 25. Further, vide order dated 15.03.2023 passed in BAIL APPLN. 3054/2022 titled Sunny v. State (Govt. of NCT of Delhi), a coordinate bench of this Court, while relying upon Arvind Yadav (supra) denied bail to the applicant therein and held as under: "8. Thus, admittedly there was confusion in the procedure of drawing samples and per Arvind Yadav (supra) even if samples were drawn at the spot would not vitiate the trial, hence any violation thereof could never be the sole basis for grant of bail. Such discrepancy in rules was even noted by the Hon'ble Supreme Court in Mohan lal (supra) and accordingly fresh Rules were notified vide gazette notification dated 23.12.2022, thus the compliance of Standing Order 01/1989 prior to the notification (supra) perse would not be a ground to grant bail. Hence purely on this ground, I am not inclined to grant bail to the petitioner." 26. The Hon'ble Supreme Court in in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549 held as under:- "6. In the light of Section 37 of the Act no accused can be released on bail when the application i....
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....lving commercial quantity. It has also been submitted that prejudice caused, if any, would have to be established at trial during recording of evidence and examining necessary witnesses. 29. In the present case, recovery from the present applicant was from his checked in luggage which on search, was found to be containing 5 boxes of weed biscuits, which further contained 10 transparent plastic packets having similar markings. The said transparent plastic packets were alleged to have contained off-white colour powdered substance, weighing about 10,000gms (10kg) which upon testing came out positive for heroin. It is the case of the prosecution that thereafter an application under Section 52A of the NDPS Act seeking drawl of samples was preferred before the Court of learned Metropolitan Magistrate on 15.07.2021 (recovery took place on 27.06.2021). It is pertinent to note that the aforesaid contraband was in a checked in luggage and was brought in concealed manner as pointed out hereinbefore. 30. The contention of the learned counsel appearing on behalf of the applicant was that the aforesaid sampling is defective by way of reliance on Standing order of 1/88 & 1/89, dated 15.03.1....
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.... "2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotics drugs and psychotropic substances save in the case of opium, ganja and charas (hasish were quantity of 21 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the package/ containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case of seizure of a single package/ container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/ container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on color text by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where....