IMPORTANT POINT
Sampling of seized contraband has to be done as per Standing Instructions.

ORDER

The Criminal Original Petition is filed to enlarge the petitioner/A2 on bail in CC.No.53 of 2023 pending on the file of the Court of 1st Additional Special Court for Exclusive Trial of cases under NDPS Act, Chennai.

2. The case of the prosecution in brief is that, on 14.09.2022 the defacto complainant received a secret information at about 9:00 a.m., that 3 persons would bring ganja for sale at about 10:30 a.m. near Venkatapuram junction. The defacto complainant recorded the information, obtained necessary permission and mounted surveillance along with police party at the spot from 9.05 a.m. At about 9.30 a.m., three persons came from the direction of Nagari, Andra Pradesh to Venkatapuram, each holding sacks in their hands. On being identified by the informant, they were apprehended and they are one Muruganandam, Raju, and Suresh Pandian. The accused were informed about the secret information that, they possess ganja and they were offered to be taken before the learned Judicial Magistrate/Government Officer for physical search. They refused the offer and preferred the defacto complainant to search them. Accordingly, a search was conducted. During the search, 5 kgs of ganja was found in the sack held by Muruganandam, ganja of 8 kgs each were found in the sacks held by Raju and Sureshpandian. Ganja was seized from the accused and put together, which weighed about 21 kgs in aggregate. The seized ganja was clubbed and two samples each weighing 50 grams of ganja were taken and marked as S1 and S2. The remaining ganja was kept in a plastic bag, sealed and marked as P1 and three sacks in which ganja was kept were seized and marked as P2. The accused were arrested and their confessional statements were recorded. Then the case was registered.

3. Learned counsel for the petitioner pressed for bail on the following grounds, viz.,

(i) The allegation that accused was found with ganja of 8 kgs is not true.

(ii) Assuming that ganja was seized from the petitioners, no proper procedure was followed at the time of taking the samples. The guidelines issued for taking samples was violated.

(iii) As per Section 57 A of NDPS Act, the sample should have been taken in the presence of learned Judicial Magistrate, but that procedure was not followed.

(iv) If the sample is not taken, as per the law and guidelines issued, the accused is even entitled for acquittal. When the accused is entitled for acquittal for not following the procedure at the time of taking samples, it goes without saying that the accused is entitled for bail as well.

(v) Though it is claimed by the prosecution that, the accused was found at the same spot, at the same date and time, along with ganja, there is no evidence produced to show that, where did the accused procure ganja and whether there was any common intention or conspiracy among them to buy and bring commercial quantity of ganja for the purpose of sale. There is absolutely no evidence collected in this regard.

4.1 When that being the case, the accused can be charged only for possession of quantity of ganja seized individually and not collectively for possession of commercial quantity, on the premise that they are in joint possession of commercial quantity of ganja.

4.2. In support of his submissions, he relied on the following judgments.

(i) Noor Aga Vs. State of Punjab reported in [2008 16 SCC 417]

(ii) Netram Vs. State of Rajasthan reported in [CDJ 2013 Raj HC 642]

(iii) Wali Hassan Vs. State of Uttar Pradesh in Crl.M.Bail.Appln.18303 of 2020 ;

(iv) Naveen Jat Vs. State of Madhya Pradesh in MCRC.No.19405 of 2022;

(v) Simarnjit Singh Vs. State of Punjab in Crl.A.No.1443 of 2023.

4.3. Learned counsel for the petitioner submitted that, petitioner is innocent. He is falsely implicated as an accused in this case. He is in judicial custody from 14.09.2022. Assuming without admitting that ganja was recovered from the petitioner, he can only be charged for possessing 8 kgs of ganja. He cannot be charged