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2022 (8) TMI 1545
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....aiding party was constituted and proceeded to the place of information. About 11:55PM, the petitioner was apprehended. Notice under Section 50 NDPS Act was served upon the petitioner and search was conducted in presence of ACP (Operations). During search, a black coloured bag containing 24 polythene packets of pink colour substance were recovered from the possession of the petitioner. The same were checked with the help of Testing Kit and found to be heroin. The packets weighed 4 Kgs. 800 grams Acordingly, FIR No.0007/2021 under Section 21 of NDPS Act was registered at PS: Hauz Qazi. During the course of investigation, two samples were taken from the recovered substance by SDM, Karol Bagh as per proceedings under Section 52A NDPS Act. Further, as per FSL report, the samples were found to contain Diacetylmorphine (13.8%), monoacetylmorphine and trimethoprim. 3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated and was lifted from Rithala Naala nearby Rithala Metro Station about 5:00-6:00 PM on 13.01.2021 by the raiding team. It is further urged that in view of the same, the Call Detail Records were requested to be preserved and analysed and....
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....registered at PS: Sultan Puri, Delhi. So far as the recovery and sampling of the contraband is concerned, it is submitted that each of the packets was tested with Field Testing Kit, which on the basis of physical properties was found to be heroin. It is submitted that merely because the contents of 24 packets were mixed thereafter for the purpose of obtaining the sample, it cannot be presumed that entire proceedings stand vitiated. It is urged that even in the order passed by the learned Trial Court dated 07.09.2021, it has been observed as under :- "...........Even if for the sake of arguments, it is presumed that accused/applicant is liable for possession of one packet only, even then accused/applicant is not entitled to bail as a matter of right. 200 grams of heroin is more than small quantity but less than commercial quantity. The facts and circumstances of the present case are very different from the facts and circumstances of the cases upon which reliance has been placed by Ld. Counsel for accused/applicant. The other contentions raised by Ld. Counsel for accused/applicant are a matter of trial......." Reliance is further placed upon the judgments/orders passed in Bipin ....
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....her piece recovered from the possession of accused therein was also charas. The quantity recovered, as such, was proved to be less than 5 grams which fell within the meaning of small quantity for the purpose of Section 27 of the Act. It may be observed that the aforesaid findings had been given after the conclusion of trial at the stage of appeal. (ii) In Javed A Bhat vs. Union of India, the accused was charged for being found in possession of 380 grams of hashish/charas, 85 grams of ganja, 37 grams of brown sugar/heroin, 8.4 grams of ecstasy tablets and 6 grams of cocaine. Arguments in the aforesaid case were confined on the point of sentence in relation to possession of 380 grams hashish under Section 20(b)(ii)(B) of NDPS Act. The said charas/hashish was found in the form of cigars and flat substances but the panchnama nor the evidence reflected as to how many such substances were in the form of cigars or flats in the transparent polythene which when weighed was found to be 380 grams. Thereafter, two representative samples of 50 grams each were taken from the said packet and put into two separate polythene bags and sent for analysis. Further, as per evidence therein on record ....
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....samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs. 26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. 27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative." It may be observed that....
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....id consignment covered under MAWB No. 07133613414 was found to be 24.400 kgs. and accordingly, the net weight of suspected Dry Chat leaves was found to be 195.960 kgs. Similar exercise was taken with respect to cartons marked B1 to B10 and C1 to C10 pertaining to other MAWBs. Thereafter representative samples in consignments covered in each MAWB were drawn and in total six representative samples were drawn. Further, for drawal of representative samples from each consignment pertaining to MAWB No.07133613414, the Inspector took small quantity of substance i.e. dry chat leaves from each of the packages containing dry chat leaves, mixed thoroughly to make the mixture homogenous and out of these two samples, representative sample each weighing 24 grams was taken which were individually kept in press locked plastic pouches. It was also contended that the bag containing dry leaves was tampered with by the investigating agency entrusted for investigation and that too without the knowledge of custom officials. Giving benefit with reference to the sampling procedure after making reference to Basant Rai vs. State (supra), petitioner/accused was given benefit of bail. The observations in p....
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....g cream colour powder wrapped in gatta and both sides of the gatta were laminated with plastic. Cream colour powder from these five packets was taken out on a transparent polythene and was checked with the field testing kit which gave positive result for heroin. On weighing, it was found to be 800 grams and thus two samples of 5 grams each were taken and the remaining 790 grams heroin was also sealed in the cloth pullanda. Repelling the contentions of the petitioner, it was observed in para 10 as under:- "10. Contention of learned counsel for the petitioner that samples should be drawn from each of the packet though merits consideration however, does not vitiate the case of the prosecution for the reason as per the prosecution all five packets were separately tested by the field testing kit and they were found to be containing heroin. After having checked from the field testing kit, the Investigating Officer mixed the contents of the five packets which turned out to be 800 grams in total out of which two samples were drawn. Once each of the packets contained heroin at best the issue would be of percentage of purity which issue is not required to be considered at this stage." (i....
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....er somewhat similar circumstances accused was found carrying polythene bag containing eight smaller polythene bags having brown colour substance and IO took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis. Further, it may be observed that in Ahmed Hassan Muhammed vs. The Customs (supra), the case related to import of certain consignment in which the contraband was recovered and as such apart from the benefit on account of sampling, the contentions had been made that the involvement was alleged on the basis of conspiracy and no incriminating material was recovered from the person of the petitioner/accused therein. 12. Observations of the learned Trial Court in order dated 06.08.2021 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 u/s 35 and 54 NDPS Act against this accused at this stage, which could be rebutted during trial (Madan Lal vs. State of HP 2003(7) SCC 465 and Mohan Lal Vs. State of Rajasthan 2015 (6) SCC 222). The substance from each packet was tested individually and wa....
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....l for the petitioner further raised the contention with regard to the violation of mandatory circulars and procedure while drawing the samples and placed reliance on the judgment Amani Fidel (supra) but the same is also of no help to him as the procedural defect or violation of any circular would be a matter of trial and the judgment Amani Fidel (supra) is after the trial and is not on the point of bail on the above said grounds. The entire procedural defect in this regard would be tested when the evidence is led in this case and this is not the stage where any opinion can be given in favour or against the manner in drawing the samples. The recovered quantity is a commercial quantity hence bar of section 37 applies. In these circumstances, no ground for bail is made out. The bail application is, therefore dismissed." (iv) In Bobby Collin vs. Narcotic Control Bureau (supra), the accused disclosed that he was carrying some pellets/capsules of drug in his stomach. Thereafter, he was physically examined but nothing incriminating was recovered. The petitioner was accordingly admitted in emergency surgical ward for removal of pellets/capsules. 65 pellets/capsules were passed/removed fr....
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....odology to escape law, by carrying large number of smaller packets which later on, is challenged 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 different packets was of similar texture, colour and tested positive on field te....