TaxTMI 
TaxTMI 
2023 (6) TMI 1437
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....urther directions, permission was given to enter, search, and seize the contraband and to arrest the accused without a warrant. Requirements of section 42 NDPS Act were fulfilled and information was lodged by SI Balbir Chand vide DD No.5 in the daily diary. Thereafter, a team led by the SI Balbir Chand was constituted for the raid which included the beat staff and women constables. The raid was accordingly conducted at the aforementioned premises. 4. The petitioner along with her brother-in-law Masoom Sheikh were allegedly found inside the house. They were both served notices for the search of their house which was duly acknowledged by them. According to the raiding team, when the search was being undertaken, the petitioner ran towards her bedroom, locked herself inside, and made a PCR call. She finally opened the door and a search of the room was conducted. Some black polythene bags, scissors, packing materials and transparent polythene bags were found. The black polythene bags were found containing small plastic pudiyas containing creamish/brownish-like substance. This was checked with the help of a FieldTesting Kit and found positive for smack/ similar narcotic substance. 5. I....
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....has been preserved and the nodal officer has been cited as a witness in the list. The DVR of the CCTV installed at EDM Mall, Ghaziabad was taken into possession and has been sent to FSL, Rohini to know the genuineness of the claim and the result of the same has been obtained. 9. As per the status report, the investigation of the case qua the petitioner and co-accused Masoom Sheikh has been completed and the charge-sheet has been prepared which was later filed before this Court. 10. On 17th February 2023 report from FSL was received and the exhibit was found to contain "diacetyl-morphine, aceta-minophen, acetylcodenine, monoacetyl-morphine and tri-methoprim". Submissions on behalf of the petitioner 11. As per the learned counsel for the petitioner, the petitioner has been implicated falsely in complete violation of mandatory provisions of the NDPS Act. The petitioner applied for bail but the same was rejected vide order dated 30th November, 2022 of the Ld. ASJ, Karkardooma Courts, North-East district. It is contended that the sampling was invalid considering that all the pudiyas were mixed, as per the prosecution and into a common receptacle and then a sample was taken out. Rel....
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....covered were mixed together and samples were drawn. This Court held that though it was settled law that it was not practicable to send the entire quantity, then sufficient quantity by way of samples from each packet recovered to be sent for chemical examination. In that matter it was held that mixing the substances of all 8 packets into one or two and drawing a sample, would be of the total quantity and not of separate pieces, benefit therefore should have gone to the accused since proper procedure had to be followed. 12. Relying inter alia upon the aforementioned decisions, the learned counsel for the petitioner stated that mixing together all the pudiyas would make the whole procedure invalid. Further, it was contended that the petitioner was actually not at her home at that time of arrest and was at the EDM Mall of which the DVR has been obtained and forms part of the charge-sheet. 13. It is further contended that as per the case of the prosecution reflected in the charge-sheet, the raiding party knocked at the door of the petitioner's residence at 7:20 p.m. and the door was opened by Masoom Sheikh, the younger brother of Salauddin. The petitioner also came to the door, as per....
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....nt on the basis that the final decision was on the basis of collective weight and not of the mere sampling being invalid due to mixing. 15. Further, it was submitted by the Ld. APP that at best mixing 20 packets together was an irregularity and did not invalidate the whole process. Reliance was placed on the decision of the Hon'ble Supreme Court in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 where it was held that whether the procedure laid down under the NDPS Act is complied with or not, cannot be looked at the time of grant of bail but can be decided only at the time of trial. Analysis 16. As regards the issue of sampling at the time of seizure, it may be worthwhile to deliberate upon the various authorities often cited in this regard. The issue that arises in this matter is of defect in the sampling procedure adopted by the investigating officer at the time when recovery and seizure, in this case, is effected. While the accused submit that the procedure for the sampling of seized materials is not in accordance with the mandate of the Standing Order No. 1/88 issued by the Narcotics Control Bureau and Standing Order 1/89 issued by the Ministry of Finance, Government ....
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.... weight, bearing identical markings and the content of each package given identical results on color test 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 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn. 2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package /container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples a....
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.... such a reminder package /container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." (emphasis added) 18. The Hon'ble Supreme Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417 dealing with recovery of 1.4kg heroin from a cardboard container, considering the sanctity of Standing Order 1/89, held as under: "87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court. We are not oblivious of a decision of this Court in Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors (2007) 8 SCC 212 relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated: (SCC p.222,para 23) 23. In the cases on hand, no p....
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....s Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1 held that statutory instructions are mandatory in nature. 91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. (emphasis added) 19. The Hon'ble Supreme Court in Union of India v. Bal Mukund (supra) while referring to Standing Order 1/88 held as follows: "36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from e....
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....be followed by the Officer-in-charge of the investigation of crimes falling within the purview of the NDPS Act. The Court held that even though the said instructions did not have the force of law, they were intended to guide the officers to ensure that a fair procedure is adopted in the investigation. 65. In a subsequent decision, in the case of State of Punjab v. Makhan Chand: (2004) 3 SCC 453, the Supreme Court held that Section 52A(1) of the NDPS Act did not empower the Central Government to lay down the procedure for search of an accused. But, a subsequent decision rendered by the Supreme Court on 31.03.2009, in Union of India v. Bal Mukund (supra), the Supreme Court observed that Standing Instructions No. 1/88, which required samples of adequate quantity be drawn, had not been followed and the same was referred to as "a requirement in law". 66. The decision in the case of Bal Mukund (supra) which was rendered by a Bench of three Judges, is binding. It also cannot be disputed that 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 ....
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....016 decided on 30.08.2019." (emphasis added) 23. More recently, a Coordinate Bench of this Court in Laxman Thakur (supra) held as under: "11. The Standing Order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. 12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable." (emphasis added) 24. On the issue of these Standing Order being not mandatory, as contended by the State, reference is sometimes made to Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 where the Supreme Court observed while acquitting the accused that Section 52 of NDPS Act is directory but held that the provisions cannot be ignored by the Investigating Officer, it was held as under: 9. ... In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Vi....
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.... Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order..." (emphasis added) 26. Reference must also be made to the decision of the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 where it held as under: "24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probati....
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....28. As a side-wind, it is worth mentioning that post the decision in Mohanlal (supra), the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, 2023 SCC OnLine Del 2881 while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein procedure for seizure and storage of seized material and sampling and disposal has been provided in detail and which directs sampling to be done in front of the magistrate. Therefore, as per this view, the sampling ought to be done in compliance of Section 52A and not at the time of seizure. However, this has not been the scope of the discussion during the arguments addressed by the learned counsels in this matter and therefore is not being deliberated in detail. The only purpose why this is being adverted to, is to emphasize tha....
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.... would still import an element of reasonable doubt in the sampling procedure undertaken. 33. Further, the CDR records prima facie seem to suggest that the petitioner was not present at her residence when the raid was conducted at 7:20 p.m. and despite being a point to be confirmed during trial, benefit at this stage of bail, would also have to go towards the accused. 34. This Court has taken guidance from the decision of the Hon'ble Supreme Court in Mohd Muslim v. State (NCT of Delhi) (2023) SCC OnLine SC 352 where it has been held by the Apex Court that at the stage of granting bail in the NDPS matter, the standard to be considered is to look at the material in a broad manner and reasonably see whether the guilt of the accused guilt may be proved. The satisfaction of the Court in this regard is only prima facie in nature based on reasonable reading and does not call for a meticulous examination of the materials collected during the investigation. The relevant extracts of the said decision are extracted herein below: "20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commi....