IMPORTANT POINT
Bail application – Seizure of Ganja – Where collection of sample itself is faulty, rigours of Section 37 of NDPS Act will not be applicable.

JUDGMENT (ORAL)

Jasmeet Singh, J.—This is an application seeking regular bail in FIR No.0021/2022 dated 26.02.2022 u/s 20/29 of the NDPS Act registered at PS Crime Branch.

2. It is stated by Mr. Aggarwal that in the present case, the procedure for collection of sample is faulty and in violation of standing order 1/88 of the guidelines of NCB. To substantiate his arguments, he has drawn my attention to the seizure memo, wherein it has been stated as under:—

“Before the following witnesses at 1st Floor, H.No.RZ-20P/H.No.6, Gali No.Zero, East Sagarpur, two persons from Delhi, Ajit Kumar S/o Sh. Parmeshwar R/o Rasulpur Chhati, Post Chenwa. PS Rasulpur, Distt Chapra, Bihar, Age-26 Years and Laxman Thakur S/o Dharam Thakur R/o Rasulpur Chhati, Post Chenwa, PS Rasulpur, Distt Chapra, Bihar, Age-52 Years were arrested on the basis of mukhbari and searched in compliance with all legal provisions. During the search, person namely Ajit Kumar took off the black pithu bag from the shoulder, which on opening the bag and checking, a total of 6 packets covered with brown color tape were found from the bag and all the packets were found to contain light moisture grassy material with flowers and seeds, which was found to be ganja on the basis of smelling and physical properties, which after weighing all 6 packets, 2/2 kg ganja was found in all (total 12 kg ganja) after which we put the ganja found in all 6 packets in a white big sack/ katta and tied the mouth of the sack/ katta with the help of white cloth and a pulinda was made and sealed with the stamp of MK and marked as mark „A” After this, the black bag held in Laxman’s hand was checked, on which TYCOON4 is written on the bag with white thread embroidery, in which there are a total of two pockets on which there are chains. On checking the packets, transparent plastic layer was found under brown color tape and in all the packets, light sealed grass-like substance with flowers and seeds was found to be ganja on the basis of smelling and physical properties, which after weighing all 5 packets, all of them got 2/2kg ganja (total 10 kg ganja) which all Put the ganja found in 5 packets in another white sack/ katta and tie the mouth of the katta with the help of a white cloth and a pullanda was made and sealed with the stamp of MK , which was given mark B. After this, all the 11 packing materials and the above two black bag were put together in a white bag and the mouth of the katta was tied with the help of white cloth and a pulanda was made and sealed with the stamp of MK, which was given the mark C. After that all the above pulanda mark as A, B and C were taken into police custody.

Seizure has been done

Witness:

3. Ct. Radhey Shyam No. 773/Crime, AGS, Crime Branch

4. ASI Randhawa No. 3120/DW, AGS, Crime Branch

ASI Pawan Kumar

No. 2670/W

PIS No. 28900147

AGS Crime Branch, Dwarka”

3. As per the said seizure memo, the 12 Kg Ganja recovered from 6 packets in possession of Ajit Kumar were mixed and also 5 packets of 2 Kgs each found from the applicant were mixed and thereafter were sealed. Thereafter, the samples were taken.

4. Mr. Aggarwal has relied on a judgment of “Basant Rai vs. State” in Crl. Appeal 909/2005 as well as “Santini Simone vs. Department of Customs” [2020 SCC OnLine Del 2128].

5. Per contra, Mr. Chauhan, learned APP has relied on the judgment of Supreme Court titled as “Sumit Tomar vs. The State of Punjab” [(2013) 1 SCC 395] and more particularly paras 11 & 12 which reads as under:—

“11. The next contention, according to the learned Senior Counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15(c) of the NDPS Act, which prescribes minimum sentence of 10 years and which may extend to 20 year