AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 364
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....r 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 bag having Tag no. 0157392647 was suspected to be narc....
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....ama 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 on the ground of defect in sampling procedure adopted by the Investigating Officer at the time when the rec....
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..../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 of the alleged non-compliance with the appropriate procedure for sampling. 9. In support of his submission, learned counsel appearing on behalf of the Customs placed reliance upon the fo....
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....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 space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their....
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.... 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, Government of India, Ministry of Finance, Department of Revenue, has issued another notification dated 23.12.2022. So far as the notification dated 23.12.2022 is concerned, the same has been issued under the powers conferred by Section 76 read with Section 52A of the NDPS Act. The Rules dated 23.12.2022 would be applicable both in the cas....
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....e 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 of this Court in Santini Simone v. Department of Customs, 2020 SCC OnLine Del 2128, in an appeal against conviction under Section 20(b)(ii)(c) and 23(c) of the NDPS Act, examined the aforesaid issue. It was observed that the ratio laid down by the Hon'ble Supreme Court in Bal Mukund (supra) was binding. It was held as under: "54. The next aspect to be exami....
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....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 3860; Charlse Howell @ Abel Kon v. NCB, 2018 SCC OnLine Del 10564 and Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080 have all been rendered in appeals, after completion of trial. 19. In Ahmed Hassan Muhammed v. The Customs, 2021 SCC OnLine Del 486, a coordinate bench of this Court granted bail to the applicant therein, inter-alia, on the ground that proper procedure for sampling wa....
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....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 coordinate bench of this Court, in a case where all the contents of the recovered contraband were mixed together before samples were drawn, while relying on Amani Fidel Chris (supra) observed that the procedure adopted was not in consonance with standing order 1/88. It was held has under: "Prima facie, the said drawing of the samples as per the contents of the FIR does not appear to be in consonance with the Standing Operating Procedure in Standing Order 1/88 da....
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....ould 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 recent judgment titled Santinu Simone v. Deptt. of Customs [Santinu Simone v. Deptt. of Customs, 2020 SCC OnLine Del 2128] in para 83 held that the prosecution had failed to establish that the content of each packet was separately tested however in present case prima facie the each packet were separately tested. Furthermore, any infirmity in the procedure which do not go into the root of the matter cannot be appreciated at this stage." 26. The procedure followed in the present case appears to be distinguishabl....
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...., 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 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 ....
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....h 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 is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such p....
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.... 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 15.03.1988 and 13.07.1989 respectively is misplaced. 31. It is pertinent to note that Paras 1.6 & 1.7 of the Standing Order 1/88 dated 15.03.1988, read as under: "1.6 Quantity of different drugs required in the sample: The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the case of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well ....
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....kage/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 it may be bunched in lots of packages/containers, one sample (in duplicate) may be drawn." (emphasis supplied) In the present case contents of the ten packets were homogeneously mixed together and samples were drawn before the learned Metropolitan Magistrate. 32. In view of the aforesaid, this Court is of the opinion that the procedure adopted with respect to contraband in the present case is not defective in nature at this stage. The applicant will get ample opportunity to prove that the said recovery was defective and samples drawn were not the true representatives of the samples recovered, during the course of trial before learned Special Judge. It is pertinent to note that, t....