TaxTMI 
TaxTMI 
2022 (4) TMI 1639
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....eceived by N.C.B. from a squealer on 20.02.2020, a team was constituted for Neutral Citation No. - 2022:AHC-LKO:22193 arresting the accused-persons, namely, Chhotey Lal and Kavinder Kumar, from general bogey of Train No.12237 Begumpura Express. The N.C.B. team intercepted the said accused-persons from the said general bogey on 20.02.2020 at 16.15 pm. Thereafter, apprehended accused-persons were taken at platform no.7 and 4 Kg and 3 Kg Opium was recovered respectively from Chhotey Lal and Kavinder Kumar being contained in their bags. The sample of 25 grams was taken from each packet and sealed. The sample of the said contraband was sent for forensic analysis on 23.02.2020 and was received in the Central Revenue Control Laboratory on 24.02.2020 and the report was prepared on 26.02.2020. Rival Contentions:- 5. Learned counsel for the applicants has stated that out of seven samples received, there is a difference of weight in three samples, out of which, sample P2S1 and P6S1 are found to be of 22.2 grams and 21.6 grams respectively. Thus, they are found deficient of the requisite weight by 2.8 grams and 3.4 grams respectively. 6. On this count, learned counsel for the applican....
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.... recovered contraband substance and its sample or not. In this regard, learned counsel for the appellant has relied upon the Standing Order No. 1/89 para 2.3 of which provides as follows: "2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the case of opium, ganja and charas (hashish) where quantity of 24 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 packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn." 15. This Court is of the opinion that the view of the learned A.G.A. is not tenable because under the Standing Instructions 1/88 issued by the Narcotics Drugs Bureau on 15.3.1988 , though after the recovery made in the present case, provided for the mode to be adopted to take sample of the contraband, which prescribed the certain quantity to be taken out of the contraband. The Standing Order 1 of 89 dated 13.6.1989 issued by Government of India (supra) also prescribes that in case of opium not....
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....eport to be doubtful." 9. Learned counsel for the applicants has also placed much reliance on the judgment of this Court passed in Criminal Misc. Bail Application No.9660 of 2021 (Om Prakash Verma vs. State of U.P.) decided on 11.03.2022, wherein it has been opined that the Standing Order and the other guidelines issued by the Authority having legal sanction are required to be complied by the Arresting Authorities. He has further submitted that the recovered contraband is slightly above on the side of commercial quantity as the commercial quantity of Opium is 2.5 Kg. He has also submitted that there are no criminal history of the applicants. 10. Learned counsel for N.C.B., Sri Akhilesh Kumar Awasthi has vehemently opposed the bail application on the ground that the applicants are the perpetrator of the crime and a total of 7 Kg illegal Opium has been recovered from the conscious and constructive possession of the applicants, which is much more than commercial quantity. He has further stated that the mandatory provisions of Sections 50 and 57 have been religiously followed and after completing the investigation, a complaint was filed by the N.C.B. before the competent authorit....
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..... Ram Samujh And another [(1999) 9 SCC 429] 9. Satpal Singh vs. State of Punjab [(2018) 13 SCC 813] 10. Khet Singh vs. Union of India1 [2002 CRI. L. J. 1832] 11. Dehal Singh vs. State of H.P. [AIR 2010 SC 3594] 13. It is also provided in Section 52(1) of NDPS Act, wherein it is provided that the sample from the contraband should be taken before a Magistrate. The sample in the present case has been taken before the concerned Magistrate and the same law has been settled by the Apex Court. The taking of the sample before a Magistrate rules out any kind of adulteration or interpolation in the collection of the sample. 14. The relevant portions of the judgment rendered by the Apex Court in Union of India vs. Mohanlal and another [(2012) 7 SCC 712] are as follows :- "12. Section 52A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads: Section 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 p....
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....lice station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be corr....