TaxTMI 
TaxTMI 
2023 (8) TMI 1547
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.... Charas, was ever effected from the applicant. According to the prosecution, 10 kgs of Charas was allegedly recovered from the co-accused person, Suraj, and that too even before the same was handed over to the applicant. 4. Learned counsel submits by referring to the status report filed by the prosecution, that the seizure of the contraband as also the sampling is contrary to the procedure laid down under Section 52A (2) of NDPS Act. Learned counsel submits that according to the provisions of sub-Section 2 of Section 52A of NDPS Act, the concerned officer under Section 53 of NDPS Act is empowered only to carry out an inventory of the alleged seized psychotropic or controlled substances or narcotics and does not have mandate to proceed to the stage of drawing sample therefrom. 5. Learned counsel submits that the drawing of sample is mandated to be carried out by the Magistrate alone and the said procedure has been clearly laid down in sub-Section 2 of Section 52A, particularly sub-Clause (c) of NDPS Act. 6. According to learned counsel, mandatory provisions of law were violated by the investigating agency. In that regard, learned counsel relies upon the judgment of Hon'ble Suprem....
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....er in which the samples were drawn out in the absence of the Magistrate has been categorically contended. According to learned counsel, the said sampling was carried out by the complainant on 16.10.2019 contrary to the provisions of law. 8. Learned counsel draws attention of this Court to page 116 of the chargesheet to submit that in fact the procedure, which was supposed to be followed under Section 52A of NDPS Act was conducted only on 01.11.2019 before the learned Magistrate. 9. That apart, learned counsel lays great emphasis on the fact that the samples which were sent to the FSL were infact not the one which were drawn by the Magistrate on 01.11.2019 but those which were drawn on 16.10.2019 by the complainant. This, itself, again being a violation of mandate of law, would entitle the applicant on regular bail. For that purpose, learned counsel relies upon the judgment of the Single Bench of Bombay High Court in the case of Santosh Pandurang Parte vs. Amar Bahadur Maurya and Anr, in Bail Application No. 4125/2021, delivered on 19.07.2023, particularly to paragraphs 7 to 9, to submit that in case there is violation of the sampling being carried out or the samples which have be....
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....ts that even if previous sample was drawn by the IO on 16.10.2019, the same would not impact the authenticity or the veracity of the sample which was drawn by the Magistrate on 01.11.2019 and thus the submissions of learned counsel for the applicant on the aforesaid ground, according to learned APP, is untenable. 14. That apart, learned APP submits that though it is undisputed that the contraband, i.e. Charas weighing 10 kgs, was seized from the co-accused namely Suraj and there has been no recovery effected from the applicant at all, however, keeping in mind the fact that this is a commercial quantity and both the applicants were apprehended at the spot, lends credence to the fact that the complicity of the applicant cannot be ruled out. 15. That apart, learned APP submits that it is beyond cavil that the Charas which was seized, was a commercial quantity and the rigors of Section 37 of NDPS Act would be squarely applicable. 16. Learned APP also refers to the status report filed on behalf of State dated 18.01.2023 particularly to paragraphs 4, 7, 8 and 9 to submit that the mobile phone seized from the applicant shows calls being made across the other mobile phone numbers wheref....
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....pered with, will not be a question which needs to detain this Court as of now. However, the fact that the samples which were sent to the FSL were not those which were drawn by learned Magistrate may have a greater impact so far as the consideration of bail is concerned. 25. Having said that, this Court has considered the judgments of the Single Bench of Bombay High Court in case of Santosh Pandurang Parte (Supra) and agrees with the observations made therein. Applying the ratio in the present case, it appears that there has been a prima facie violation of provisions of Section 52A (2) of NDPS Act not only in terms of drawing of samples by the complainant on 16.10.2019, which, according to clause (c) of sub-Section (2) of Section 52A of NDPS Act was conferred and vested only upon the Magistrate and none else. That apart, even sending of the samples drawn by the complainant, instead of those drawn by Magistrate, for chemical analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act. 26. That apart, the judgment of the Supreme Court in Bothilal's (Supra) also makes it clear as to in what manner the prosecuting agencies are to not only prep....