The main legal point established in the judgment is the requirement for proper collection of samples and the consequences of non-compliance with the standing orders and provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

JUDGMENT :

1. Heard the learned Counsel for the parties.

2. The applicant who is arraigned in C.R.No.9 of 2023 registered with DCB, CID, Unit No.7, Ghatkopar (Original C.R.No.6 of 2023 registered with Bhoiwada Police Station) for the offences punishable under Sections 20(b)(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act, 1985) has preferred this application to be enlarged on bail.

3. Pursuant to a secret intimation that four persons with described features and articles would come in front of Abstract Authentic Shop, Dadasaheb Phalke Road, Dadar on 1 February 2023 in between 3.30 a.m. to 4.30 a.m., the police party conducted a surveillance at the spot. At about 3.50 a.m., four 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 the prosecution case wholly unsustainable. The first information report and the panchanama clearly indicate that the contents of the four packets in which the contraband articles were allegedly found, were mixed, and, thereafter, samples were collected. Mixing of alleged contraband articles is in breach of the Standing Order and has been held to vitiate the seizure as it cannot be said to be a representative sample of the contents of each of the packets/containers.

5. Secondly, Mr. Satre would urge, there was an inordinate delay in compliance of the provisions contained in Section 52A of the Act, as the alleged seizure was effected on the night intervening 31 January 2023 and 1 February 2023 and the inventory was conducted on 10 February 2023. Therefore, the applicant deserves to be enlarged on bail.

6. On the first count, which was pressed into service by Mr. Satre predominantly, it was urged that this Court has consistently held that mixing of the contents of different packets/containers and then collecting samples makes out a prima facie case for release of the accused on bail. Attention of the Court was invited to the order passed by this Court in the cases of Parvez Haseen Khan V/s. The State of Maharashtra : BA No.3486 of 2021 dt. 19 July 2023, Ibrahim Khwaja Miya Sayyed @ Raju V/s. The State of Maharashtra : BA 1296 of 2022 dt. 17 March 2023, Afsar Anwar Husain Sayyad V/s. The State of Maharashtra : BA 157 of 2023 dt. 29 Sept. 2023, Imran Mohamed Sharif Khan V/s. The State of Maharashtra : BA 86 of 2023 dt. 31 August 2023 and Anand Laxman Tarde V/s. The State of Maharashtra : BA 3125 of 2023 dt. 8 December 2023.

7. Reliance was also placed on the decision of the Supreme Court in the case of Union of India V/s. Bal Mukund and Ors. : Cri. Appeal No.1397 of 2007 dt. 31 Mar 2009, wherein in the context of the Standing Instruction No.1/88, the Supreme Court noted that the Standing Instructions No.1/88 issued under the Act, 1985 lays down the procedure for taking samples. The High Court had noticed that samples of 25 gms each from all the fiv