TaxTMI 
TaxTMI 
2024 (1) TMI 1574
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....ur persons matching the description and carrying the bags came thereat. They were accosted. After following the mandate of the provisions contained in Section 50 of the Act, personal search of those persons was conducted. In a traveller bag which the applicant was carrying four packets were found. Those four packets contained ganja weighing 8 kg and 655 gms. Co-accused Sandeep was found in possession of 33 kgs and 608 gms ganja. Likewise, co-accused No.3 Surya Roy was found in possession of 20 kgs. 520 gms contraband and co-accused Mohammad was found in possession of 23 kgs and 600 gms of ganja. Thus, the aggregate of 66.455 gms of contraband article worth Rs.30,58,200/- was found in possession of the applicant and the co-accused who were moving together. Contraband articles were seized. Samples were collected. The accused came to be arrested. The inventory before the learned Magistrate was prepared in conformity with the provisions contained in Section 52-A of the Act. 4. Mr. Satre, learned Counsel for the applicant, strenuously submitted that there is a fundamental defect in the collection of the samples, which is evident from the FIR and the seizure panchanama which renders t....
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....applicant placed reliance on the decision of the Delhi High Court in the case of Kashif V/s. Narcotics Control Bureau [BA 253 of 2023 dt. 18 May 2023]. 9. Mr. Aagarkar, learned APP resisted the application for bail. It was submitted that huge quantity of contraband articles were found in possession of the applicant and the co-accused. There was no infirmity in the search and seizure. Since the applicant and the co-accused were found in possession of the commercial quantity, the interdict contained in Section 37 of the Act, 1985 comes into play with full force. The applicant has not been able to show that the conditions stipulated under Section 37 for grant of bail have been fulfilled. 10. An endeavour was made by the learned APP to urge that the mixing of the contraband is not a grave irregularity as in the report of the Chemical Analyser, the substance recovered from the possession of the applicant and the co-accused has been found to be ganja. Whether any prejudice has been caused to the applicant on account of mixing of the contents of the packets is a matter for trial and cannot be considered at this stage. 11. I have carefully perused the report under Section 173 of t....
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....eld that "Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package." In the instant case, as noted above, the sample sent to CFSL was not the representative sample. Considering this vital aspect, in my considered view the applicant would be entitled for bail." 15. In the case of Afsar Anwar Husain Sayyed (supra), noting the observations in the case of Parvez Haseen Khan (supra), this Court was persuaded to release the accused therein on bail as in that case as well, the entire ganja was mixed together and samples were thereafter drawn. A similar view was recorded in Imran Mohamed Sharif Khan (supra). After noting the observations in the case of Ibrahim Khwaja Miya Sayyed (supra), and the fact that two slabs allegedly containing charas were not kept separately, but together, and representative samples were drawn from those two slabs kept together, this Court granted bail to the accused therein. 16. In the case of Laxman Thakur V/s. State (Got of NCT of Delhi) [BA 3233 of 2022....
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....o interfere with the order of acquittal, the Supreme Court referred to non-compliance of the Standing Instruction and observed, inter alia, as under: "39. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 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 each bag had been taken. It was a requirement in law." 21. It would be relevant to note that the Supreme Court had extracted, in paragraph No. 10, the relevant sub-clause (e) of clause 1.7 of the Standing Instruction No. 1/88. In the context of the controversy, it may be necessary to extract clause 1.7 under the caption "Number of samples to be drawn in each seizure case" under Standing Instructions No.1/88 issued by the Narcotic Control Bureau, New Delhi. It reads as under : "(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally, it is advisable to draw one sample in du- plicate from ea....
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....s/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. ................ 2.8. While drawing one sample (in duplicate) from a particular lot, it may be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 23. Perusal of the aforesaid Standing Instruction No. 1/88 and Standing Or- der No. 1/89 would make it abundantly clear that in case of seizure of the single pack- age/container, one sample in duplicate shall be drawn. It is further provided, normally it is advisable to draw one sample (in duplicate) from each package / container in case of seizure of more than one package / container. (sub-clause-a : Standing Instructions No. 1/88 and sub-Clause - 2.4: Standing Order No. 1/89). However, where a number of packages / containers are seized together, subject to the satisfaction that the pack- ages are identical in all respect, packages / containers may be bunched in lots of specified packages/containers and for each lot of packages/containers one sample (in duplicate) may be drawn. Th....
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....ontravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may ex- tend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub-section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention in- volves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed de- pending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 gm each, the quantity measured comes to 69.50 kg which is more than commercial quantity (small quantity 1000 gm/ commercial quantity 50 kg and above). In view of the same, the contention that th....
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.... not considered by the Supreme Court in case of Bal Mukund (supra). On the contrary, the Supreme Court had considered sub-clause (e) of Clause 1.7 of the Standing Instruction No. 1/88 and it was on account of the inadequacy of the content of each of the bags the representative sample so collected was held to be in breach of the Standing Instruction. 28. What should be the approach of the Court ? There can be no duality of opinion about the proposition that having regard to the stringent provisions against grant of bail and the severity of the punishment which the offences under NDPS Act, 1985 entail, the Court must insist scrupulous compliance of the Standing Instruction/Order. However, the nature of infraction is required to be kept in view and also the element of prejudice likely to have caused to the accused. Undoubtedly the officers are instructed that one sample from each package/container in case of seizure of more than one package/container be collected. However, the directive is preceded by the word "normally" and it is "advisable" These words, ordinarily, can- not be construed as peremptory. Since the Standing Instruction/Order use the qualifying words like "normally" a....
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....rt upon noticing G. Ratnam (supra), stated the law thus : "15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. 16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. 17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with....
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....at statutory instructions are mandatory in nature. 91. The 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 supplied ) 32. The Court cannot loose sight of the fact that to arrive at the satisfaction that the Accused has not committed the offence, there must be a substantial probable cause. Whether the irregularity in collection of the sample vitiates the entire seizure would thus be a matter to be decided in each case in the light of the nature of infraction of the guidelines on the touchstone of substantial compliance thereof. 33. Reverting to the facts of the case, it is imperative to note that in the seizure panchanama, it is recorded that Police Sub-Inspector Dhotre had ope....
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....ould urge that there is inordinate delay in dispatching the samples to the laboratory. Inviting attention of the Court to Clause 1.13 of the Standing Instruction No. 1/88 Mr. Satre urged that in the instant case there is a breach of mandate contained therein. Clause 1.13 reads as under: "13. Mode and Time for dispatch of sample to laboratory: The samples should be sent either by insured post or through special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Sample must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal obli- gation." 39. In the case at hand, the contraband articles were seized on 31st January, 2023. Inventory was conducted before the learned Metropolitan Magistrate on 10th February, 2023 in accordance with the provisions contained in Section 52A of the Act, 1985. The samples were delivered at Forensic Science Laboratory, Kalina, Mumbai on 15th February, 2023. The chemical analysis report indicates that the samples were received on 15th February, 2023 and each of the samples was found to be 'Ganja'. If the aforesaid factor of delay in....